The Kissie case
Alexandra Nilsson ("Kissie") runs one of the most famous lifestyle blogs in Sweden where she writes about fitness and fashion. The blog has more than 120,000 readers every day.
The Consumer Ombudsman (Sw. Konsumentombudsmannen) has brought an action against Kissie accusing her for not having adequately indicated that the content which she is posting on her blog comprises marketing. Kissie operates her blog via the company Kissie Media AB (“Kissie Media”). The Ombudsman claims that Kissie has given the impression that she is recommending a service as a consumer when the recommendation in reality comprises marketing in the operation of Kissie Media’s business. The Ombudsman demands that the court shall prohibit Kissie to publish such content and to not adequately indicate that content on her blog, Instagram or on other similar social media contains marketing. The Ombudsman argues that according to the applicable marketing law, it must be clearly stated that content posted on social media contains marketing and who is the provider of the marketing. The behavior of Kissie is, according to the Ombudsman, in breach of the Swedish Marketing Practices Act (Sw. marknadsföringslagen).
Kissie contests the claim and argues that she has not presented content which gives the impression that she recommends a service as a consumer in those situations that there is a question of marketing in the business of Kissie Media. Furthermore, Kissie claims that the content posted indicates in a sufficient way that it comprises marketing and that this has been apparent for the receivers of the marketing.
Marketing must be compliant with good marketing practice. The marketing violates good marketing practice if it affects or is likely to affect the receiver’s ability to make an informed business decision. The assessment of whether the marketing in question is in violation of good marketing practice shall be determined based on how a hypothetical average consumer perceives the marketing.
The hypothetical consumer presumes to be reasonably wellinformed and reasonably observant and circumspect with consideration taken to social, cultural and linguistic factors. The assessment of whom is considered as the average consumer shall be made taking into account the specific product or service in question and which target group the marketing is directed towards.
The Ombudsman claims that the hypothetical average consumer in this case is a young woman who has a positive attitude to Kissie and to what she is writing. The Ombudsman claims that this average consumer is more disposed compared to an ordinary average consumer to share Kissie’s opinions in different matters and believe in what she is recommending. According to the Ombudsman this requires a higher demand of marketing indication.
Kissie on the other hand claims that the hypothetical average consumer in this case has been raised during the social media era and thus is used to the interfusion of commercial messages and personal views that posts on social media often contains. The average reader has hence a high degree of knowledge about which content contains marketing and which ones that do not and are hence capable to distinguish such posts from each other. Furthermore, the average reader of Kissie’s blog are repetitive visitors and are thus familiar with her way of writing.
The case raises many questions: Are we, as receivers of marketing, so used to constantly take part of new products and services that we have sufficient knowledge to be able to distinguish marketing content from other content? If so, is there really a need to indicate that content posted on social media contains marketing? Are the marketing laws compliant with the new social media era? Or are the laws obsolete? Are the media profiles not informed correctly about the legal requirements? Or is it just a question of lack of incitement for the profiles to obey by the law?
 Swedish Patent and Market Court, case no PMT 11949-16.