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What risks can a company have when advertising goods with a blogger and how to formalize such relationships correctly


Today, companies often promote their services and products through bloggers. This gives brands access to new audiences. But such actions are not always legally correct. When a company transfers goods to well-known media persons, there are risks that should be foreseen in advance when concluding such transactions in case of bad faith of a blogger or other surprises. Yulia Tishchenko, Leading Legal Counsel of Shumsky, Iyidzhan & Partners, told Pro Business about all the nuances of promoting goods through influencers.

Yulia Tishchenko
Leading Legal Counsel, Shumsky, Iyidzhan & Partners LLC

The contract must be in writing

Transactions of legal entities between themselves and with citizens (and hence transactions with bloggers) must be made in a simple written form (Article 162 of the Civil Code of the Republic of Belarus) – by drawing up a text document, which is signed by the persons making the transaction (Article 161 of the Civil Code).

In this case, a “text document” actually means an agreement that can be concluded in any form provided for transactions: “by drawing up one text document or by exchanging text documents that are signed by the parties themselves or using communications and other technical means , computer programs, information systems or information networks, if such a method of signing makes it possible to reliably establish that the relevant text document is signed by the parties under the contract (facsimile reproduction of a handwritten signature using mechanical or other copying means, an electronic digital signature or other analogue of a handwritten signature that provides identification parties under the contract), and does not contradict the law and the agreement of the parties.

Written form agreements considered compliedif a written proposal to conclude an agreement by sending a text document is accepted in accordance with paragraph 3 of Article 408 of the Civil Code (Article 404 of the Civil Code). Failure to comply with simple written form deals deprives the parties of the right in the event of a dispute, refer to evidence of the transaction and its terms to witness testimony, but does not deprive them of the right to provide written and other evidence that is not witness testimony. In cases expressly specified by legislative acts or by agreement of the parties, non-observance of a simple written form of the transaction entails its invalidity.

Since the transfer by a legal entity of its goods to an individual is a transaction, such a transaction must be concluded by drawing up an agreement (other agreement) in a simple written form, otherwise it will be invalid and the consequences of the invalidity of the transaction will apply to it: each of the parties will be obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when the received is expressed in the use of property, work performed or service provided) – to reimburse its value in money (Article 168 of the Civil Code).

What type of contract to choose

The Law of the Republic of Belarus dated May 10, 2007 No. 225-Z “On Advertising” defines the concepts of “object of advertising”, “advertising”, “advertising activity”, “advertiser”, “advertising distributor”, “multimedia advertising” (Article 2 of the Law) . Article 29 establishes that the relations of the parties under an agreement on the distribution of advertising, with the exception of the relations of the parties under an agreement providing for the placement (distribution) of advertising free of charge, the rules on the contract for the provision of services applyunless otherwise provided by agreement of the parties.

Contract for the provision of services implies the obligation of one party (executor) for a certain fee (the price of services) on the instructions of the other party (customer) to provide services (perform certain actions or carry out certain activities) (Article 733 of the Civil Code). The price of the contractor’s services and the procedure for payment must be established in the contract (Article 735 of the Civil Code).

Thus, in addition to the need to clothe the transfer of goods by a legal entity to an individual for the purpose of advertising in writing, such a service cannot be free for a legal entity.

What to do if a blogger is ready to advertise the provided product for free

But what if you do not want to pay for advertising and are ready to donate your goods in exchange for the services of a blogger?

From a legal point of view, this option is possible. To do this, it is necessary to immediately indicate in the contract for the provision of services for compensation the grounds and conditions for the termination of obligations by providing a compensation or novation (Articles 380, 384 of the Civil Code) and recognize this method as the proper fulfillment of obligations. This method of terminating the obligation will also ensure that you comply with the requirements of currency legislation in the event that you transfer the goods for its promotion and advertising to a non-resident.

So, subparagraph 2.16. paragraph 2 of article 19 of the Law of the Republic of Belarus dated July 22, 2003 No. 226-Z “On currency regulation and currency control” determines that when exporting and importing legal entities – residents have the right, unless otherwise established by tax legislation, not to credit to their accounts , opened in banks of the Republic of Belarus, Belarusian rubles and (or) foreign currency in case of termination of the obligation of a legal entity – non-resident on the basis of an agreement on the termination of the obligation by novation or on the provision of a compensation in return for the fulfillment of the obligation.

It is important to take into account that this option is not possible for all categories of goods (for example, for alcoholic products it is impossible to provide compensation, and the obligation to compensate for harm cannot be terminated by novation (Article 384 of the Civil Code).

Civil law also provides for the possibility of terminating obligations through debt forgiveness (Article 385 of the Civil Code).

What else is important to consider when advertising a product with a blogger

It is important to remember and comply with the requirements of articles 27, 28, 29 of the Law on Advertising. If the Law on Advertising (other acts of legislation) provides for the receipt of approval (consent) for the dissemination of advertising, the advertiser and the advertiser are obliged to demand, and the advertiser is obliged to provide a copy of the document, confirming receipt of such approval (consent). This requirement does not apply only to advertising distributed on the Internet and containing information about the name or name, location or place of residence (place of stay) of the advertiser, the number and date of issue of the document confirming the receipt of such approval (consent), the name of the authority that carried out the approval , or a link to the site that contains the specified information.

If the distribution of advertising is allowed in accordance with the Law on Advertising (other acts of legislation) if the organization or citizen has other documents, the advertising producer and the advertising distributor have the right to demand, and the advertiser is obliged to provide copies of such documents. The advertiser and advertiser also have the right to demand, and the advertiser is obliged to provide copies of documents confirming the authenticity of the advertisement.

Advertisers, advertising producers and advertising distributors are obliged, at the request of the Ministry of Antimonopoly Regulation and Trade and (or) the local executive and administrative body, within seven days from the date of receipt of the request, to provide reliable documents and explanations in oral or written form, video and sound recordings, as well as other information, necessary for the exercise by these public authorities of the powers provided for by the Law on Advertising.

The advertiser should also take into account that advertising may be fully or partially subject to copyright and related rights. In this case, copyright and related rights are subject to protection in accordance with the legislation on copyright and related rights (Article 4 of the Law on Advertising).

In the current foreign policy situation, when engaging individuals-residents of the Russian Federation in the provision of advertising distribution services, we recommend that you agree on the distribution channels for advertising your product in the contract and, in the case of any advertising publications, also preliminarily agree on their text content. In addition, when choosing an advertising distributor, one should take into account the legislation in force in the Russian Federation regarding the inclusion of persons in the lists of foreign agents and the procedure for classifying them in this category.

Responsibility for violation of advertising legislation

The advertiser is liable for violation of advertising legislation in relation to the content of advertising, unless he proves that it occurred through the fault of the advertising producer or advertising distributor, as well as for violation of other requirements of advertising legislation established for the advertiser to comply with.

Organizations and citizens whose rights and legitimate interests have been violated as a result of the production and (or) distribution of inappropriate advertising have the right to apply to the court with claims in accordance with the procedure established by law, including citizens with claims for compensation for moral damage (Article 31 of the Law on Advertising) .

If the consumers of the goods are individuals, the advertiser is also subject to liability measures provided for by the Law of the Republic of Belarus dated January 09, 2002 No. 90-Z “On Protection of Consumer Rights”.

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My profession is a journalist, but my hobby for 8 years has been studying Forex investing and trading. During this time, I managed to gain extensive experience in investing and trading cryptocurrencies and double my capital in the Forex market. To be the author of this magazine, the site owners invited me to participate in one of the 2020 trading webinars, and I will try to reveal the most relevant crypto market news for you.

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