• Giselle Ayala

Be aware! When selling and advertising goods through Instagram or Facebook... In Colombia

Updated: Jun 16

According to Law 1480 of 2011 Article 30, the advertiser of a product is liable for any injuries or damages caused by misleading or false advertising. Since Law 1480 of 2011 (The Statute of Consumer Protection in Colombia) does not define the term "Advertiser", it is taken from the Colombia Code of Advertising Self-regulation. According to the Code, "advertiser" is the person in whose name commercial messages are displayed, or who performs advertising activities.

Under this definition, social networks, as traditionally known, were not considered advertisers. However, nowadays it has changed. According to the Superintendence of Industry and Commerce, social networks would be considered advertisers if the display content or act in such a way as to influence consumers' choices. Thus, if Facebook or Instagram advertises others' products or services they could be liable for any misleading or false affirmations.

As Instagram and Facebook have become advertising platforms, under Colombian Law they have entered into a direct relationship with consumers as regulated by Law 1480. This means, on the one hand, that these social networks could also be liable for the misconduct of those who use their platform to advertise their products or services, and on the other, that if a user publishes misleading or false representations he could end up losing his account without any recourse.

However, a finding of false or misleading advertising requires more than a mere erroneous affirmation related to a secondary characteristic of a product. According to the Superintendence before concluding an advertisement is false or misleading a four-part test is required.

The Superintendence analyzes,1) the affirmations made by the advertiser to determine whether they are verifiable, truth and informative enough, 2) the product's characteristics to be contrasted with the advertisement, 3) whether the information in the advertisement can mislead a consumer, and 4) the probable attitude or understanding of a rational consumer towards the advertisement.

Additionally, the Superintendence will impose administrative sanctions regardless of whether a consumer actually bought a product or paid for a service based on the advertisement at issue. In other words, to be subject to sanctions it is sufficient that the misleading or false advertisement had been displayed.

It is also worth noting that although the Superintendence analyzes the advertisement as a whole, considering all sounds, words, images, and messages there displayed, the analysis is superficial. This means, that the Superintendence makes will not consider any complex or elaborated message intended by the advertiser because consumers are influenced basically by the superficial messages sent to them. Based on the potential danger created by the product, the Superintendence considers whether the consumer received sufficient information.

In conclusion, selling products or services or performing advertising activities throughout social networks requires due diligence, both, by the user of the platform and by the platform's administrators themselves. Thus, before advertising something it is advisable to know the product or service being promoted and the risks related to its foreseeable and unforeseeable use.



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