Noel Rock (Dublin North West, Fine Gael)
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948. To ask the Minister for Jobs, Enterprise and Innovation if she is satisfied that the prohibition in section 55 (q) of the Consumer Protection Act 2007 regarding the passing off of advertising content as editorial applies to the activities of social media influencers who are being paid to promote products, services and events through their social media accounts; and if she will make a statement on the matter. [27266/16]

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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The Deputy will appreciate that only the courts can authoritatively interpret and determine statutory provisions. As section 55(q) of the Consumer Protection Act 2007 gives effect to the provision at point no. 11 of Annex I of Directive 2005/29/EC on Unfair Commercial Practices, it is the function of the European Court of Justice to ensure that European Union law is interpreted and applied in the same way in all Member States. To date, the provision in question has not been the subject of a ruling by either the Irish courts or the European Court of Justice. Though the term ‘media’ is not defined in the 2005 Directive or the 2007 Act, my Department’s view is that section 55(q) of the Act and the provision of the Directive to which it gives effect would cover the activities of social media influencers who are being paid to promote products, service and events through their social media accounts. This view is based on, among other things, on the very broad definition of ‘commercial practice’ in the Act and the Directive, the fact that the definition of ‘trader’ in the Directive includes ‘anyone acting in the name or on behalf of a trader’, and the provisions of section 6 of the Interpretation Act 2005 on construing provisions in changing circumstances. I would emphasise however that this is my Department’s view and not an authoritative judicial interpretation.

Other provisions of the Act and the Directive are also potentially applicable to the activities referred to in the Deputy’s question, in particular –

- section 55(x) of the Act which prohibits a trader from ‘making a representation or creating an impression that the trader –

(i) is not acting for purposes related to the trader’s trade, business or profession, when the trader is so acting, or

(ii) is acting as a consumer when the trader is not;’

- section 43(3)(e) and (h) of the Act which provide respectively that matters relating to the ‘existence, extent or nature of any approval or sponsorship (direct or indirect) of the product by others’ and ‘the trader’s motives for the commercial practice’ may be the subject of false, misleading or deceptive information under sections 43(1) or (2) of the Act;

- section 46(2) of the Act which provides that a commercial practice is misleading under the provisions of section 46 on the omission or concealment of material information if the trader fails to identify the commercial intent of a commercial practice and the practice would be likely to cause the average consumer to make a transactional decision that he or she would not otherwise make.

The investigation of possible contraventions of the Consumer Protection Act 2007 is the function of the Competition and Consumer Protection Commission which is fully independent in the exercise of its enforcement functions under this and other enactments.

I would also draw the Deputy’s attention to the provisions of the Code of Standards for Advertising and Marketing Communications of the Advertising Standards Authority for Ireland, in particular the following sections:

3.31 A marketing communication should be designed and presented in such a way that it is clear that it is a marketing communication.

3.32 Marketing communications should not misrepresent their true purpose. Marketing communications should not be presented as, for example, market research, consumer surveys, user-generated content, private blogs, or independent reviews is their purpose is marketing, i.e. the promotion of a product;

3.33 Advertorials should be clearly identified, should be distinguished from editorial matter and should comply with the Code.