BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
5. Social/Digital Media 5.1 Special Rules Applicable to Social Media The same CDC and CBAP principles are applica - ble to both traditional and digital media, including (i) identification of the advertising message as such by consumers; (ii) veracity; and (iii) the requirement for messages to respect constitutional social values and their target audience. In 2021, CONAR issued the Guidelines, which contain instructions to help with the application of the CBAP’s rules to the commercial content generated by social media users known as “digital influencers”. 5.2 Liability for Third-Party Content The advertiser’s liability for content posted by third parties on their brand website or a social network depends on the relationship established between them. According to CONAR’s Guidelines and prec - edents, not only payment, but also a commercial rela - tionship, characterise paid advertising. Whenever there is a commercial relation or paid adver - tising, the advertiser is, directly or indirectly, liable for the posted content. CONAR also establishes that if a company shares or makes use of organic content from a third party (ie, spontaneously created content) that mentions its brand or product, this new content – be it endorsed, shared or adapted by the company – becomes new content of an advertising nature and must therefore comply with the rules of the CBAP. It is noteworthy that companies cannot share or endorse irregular organic content, even if it is neither contracted nor solicited. The major problem, from a legal standpoint, remains those cases where there is no relationship between the brand and influencer, but where the content – which was never shared by the brand – ends up being erroneously considered as an advertisement, and the brand is held liable (as if it was the advertiser) for spontaneous content under the exclusive respon - sibility of a third party.
5.3 Disclosure Requirements In social media, written disclosure is strongly recom - mended through the appropriate means provided by the platforms (eg, paid partnership), and also by the user, for instance by using the hashtags #advertising, #advertisement, #sponsored, #paid content and #paid partnership. CONAR’s Guidelines also clarify that, depending on the context, the following expressions do not clear - ly convey the commercial relationship between an influencer and an advertiser: #ambassador, #partner, #brandXYZ, #collaboration and #colab. Moreover, the Guidelines recommend that, for gifts or activa - tion messages, the following hashtags should be used: #gifted/#received; [trip/show/event] invited by [brand]; Thanks to [brand] for [product, trip, invitation]; and #promotion, #promo [activated upon awarding gifts or prizes]. For children, as indicated in 3.2 Children , there must be a more robust disclosure, preferably in written and oral form. New communication arrangements were analysed by CONAR, who declared that disclosure of the fact that social media content is an ad is required where applicable, similar to the cases of discount coupons and affiliate links. Discussions about “creator pro - grammes” on social media have also begun. 5.4 Requirements for Use of Social Media Platforms Law 12965/2014 (the Civil Rights Framework for the Internet) provided general rules for social media plat - forms concerned with keeping connection records and removing improperly labelled content of third par - ties. In detail, the internet application provider should: • keep confidential records of connections to inter - net applications in a secure environment for a period of six months; and • be held civilly liable for third-party content only in cases of non-compliance with a court order to remove content identified as infringing on rights. Besides this regulation, the General Data Protection Law ( Lei Geral de Proteção de Dados LGPD) is appli -
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