Written by Fabiana Bisceglia, Donata Cordone – associates at Portolano Cavallo
The 2021 Sanremo Music Festival, broadcast recently in Italy, was viewed as the most social media–oriented edition of the famous festival due to the intense interaction it generated among users. Relatedly, the criticism that arrived most swiftly was directed not at the winners chosen, but rather at social media itself. Specifically, such criticism related to the final evening of the festival, when the three finalists were identified. The group included Fedez and Francesca Michielin, though just one day earlier the rankings released (based on the preferences of the festival jury, the press, and the festival orchestra) had them only in the 17th position.
The target of this criticism was Chiara Ferragni, the world’s best known Italian influencer and the wife of Fedez, who for the entire evening in question invited her followers—more than 22 million people—to text their votes to the festival organization for “Chiamami per nome,” the song her husband performed in the competition. Ferragni did this using the social media—specifically Instagram—that made her famous. There she posted many stories (including a post featuring her toddler, who is not quite 3 years old) that provided the number to text and the code for the Fedez-Michielin duo and noted that each user could send a maximum of five texts. Ultimately, the “power of sharing,” as Ferragni deemed it, won out: the previous day’s rankings were overturned, thanks to the many supporters voting for the two singers, and Fedez and Michielin took second place.
Codacons immediately issued a statement, announcing that it intended to ask “the RAI for all data regarding audience voting from home” in order to verify whether Ferragni’s call for support for Fedez on Instagram constituted a violation.
No one can say where the conflict between Codacons and the couple dubbed “Ferragnez” (widely known to predate the 2021 Sanremo festival) will lead, but there is an opportunity to analyze the events from another vantage point by posing this question: On the basis of advertising and consumer protection regulations, is Chiara Ferragni’s behavior correct?
In recent years, online advertising has attracted growing attention. This began when the Italian Advertising Self-Regulatory Body (Istituto dell’Autodisciplina Pubblicitaria) published its Digital Chart in 2016 and Digital Chart Regulation in 2019. Both were designed to establish criteria to make commercial communications online recognizable and transparent. From 2017, the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) has been more attentive to the matter, also by undertaking proceedings against influencers (though not against Fedez or Ferragni) for hidden advertising. As of today those have all ended in the acceptance of the influencers’ commitments.
In light of that history, in principle the posts published by Ferragni during the festival finale from a strictly technical-legal standpoint seem to qualify as advertising, given that they include all the necessary elements. There’s a message (the post) with a promotional purpose (inviting followers to text votes for Fedez). There’s an unrestricted audience addressed by Ferragni (her millions of followers, fungible persons). And, finally, there’s the fact that the message comes from a professional (as an influencer who makes millions of euros annually due to her activities on social media can only be defined as such). If these posts effectively were advertising, they would be subject to specific legal regulations, above all the obligation to use warnings, in the form of hashtags such as #ad or #sponsored and the like, to inform users that the posts contain promotional content.
Conversely, however, advertising by definition has the ultimate purpose of incentivizing the audience to—among other things—acquire goods and services, while in this case Ferragni’s intent was to provide an advantage to a party (Fedez) who did not benefit from the money earned from the voting, as the earnings went to a third party. Therefore, while the posts in question certainly provided an advantage to the Fedez-Michielin duo in terms of their standing at the end of the competition, under the advertising point of view they benefited a third party that had no client relationship with Chiara Ferragni. Under this perspective, it’s not crystal clear whether Ferragni’s posts should be considered advertising.
Furthermore, even more than an influencer, Ferragni is an Internet user, and as such, like every other user, she can create and publish content on social media that is based solely on her own thoughts, opinions, and preferences, as guaranteed by Article 21 of the Italian Constitution.
Here is the point where the issue grows extremely thorny. It’s true that Ferragni is an Internet user who invited those who follow her to vote for Fedez without any kind of underlying commercial agreement, motivated only by her affection for him. However, these appeals had a disruptive effect: they definitely wielded significant influence over the results of the competition and pushed followers to perform an economic action (to text a vote, for a fee) that perhaps, without her urging, they would not have. However, as the posts were not considered advertising, they were free of the hashtags required by regulatory measures that are intended to make it clear that certain content is advertising. They also lacked the appropriate consumer information, such as the price to be paid per vote, which was obviously necessary. As a result, at least some followers who were not watching the festival on television must have voted for Fedez-Michielin simply because the influencer’s posts swayed them to do so. In this (not unlikely) scenario, followers voted without knowing how much they would pay to vote and learned the price of their text messages only after having voted, specifically at the time they received the automatic message sent to all voting viewers.
This demonstrates yet again the explosive power of influencer marketing, which, not coincidentally, is an increasingly frequently used advertising technique. It is considered perhaps the most effective and far-reaching technique, as well as potentially the best one for generating revenue. Indeed, just to give another example, also Colapesce and Dimartino (two other singers who took part to the Sanremo competition) used their social media to gain votes during the finale, but they did so in an ironic way. Indeed, since they believed to have few followers, they jokingly asked some of the most powerful national and international influencers—including also Kim Kardashian and the same Chiara Ferragni —to urge their followers to use at least one of their five votes to support their song.
This episode demonstrates that the line between influencer marketing and expression of influencer thought is increasingly thin and fragile, and that new scenarios continue to arise. Even the public appears divided today—some consider Ferragni’s posts a true advertisement, while others see them as nothing more than legitimate and reasonable expression of affection toward a beloved one.
Regulating this type of situation is extremely difficult, if not impossible in practical terms: the Sanremo rules cannot forbid competitors or their loved ones from urging third parties to vote, no matter the following of the people involved. Therefore, it is up to the influencer to figure out the best way to act with regard to both soliciting votes from followers and—should they decide such solicitation is not inappropriate—providing followers the information they need to make informed economic decisions. Perhaps in the case at issue, as some have suggested, Ferragni’s behavior was crass, but as the Advertising Self-Regulatory Body has stated more than once, good taste cannot be imposed. Neither laws nor regulations penalize poor taste; instead, the market eventually takes matters into its own hands.