Could social media mentoring services attract the interest of the OCCP?

In recent years, the subject of increased interest by the Office of Competition and Consumer Protection ("OCCP") has been the activities of so-called influencers, i.e. online creators who can influence the opinions, decisions, or behavior of their observers through their publications. The President of the OCCP directs his attention to, among other things, the way goods and services are advertised on social media, in connection with the ban on market practices that mislead consumers. It is worth remembering, however, that the above ban also applies to other aspects of activity conducted in social media, such as the correct way of informing about the services offered. Attention to the above aspect should be paid in particular to those providing coaching or mentoring services via social media. 

Psychologist vs. coach

Due to the development of psychological knowledge, as well as the growing interest in psychotherapy and building self-awareness, psychoeducation is increasingly appearing in the social media space. There you can follow channels run by psychologists, psychotherapists, or people from academia or science, dedicated to popularizing psychological knowledge and information on psychotherapy.

At the same time, in the same space, there is a lot of alternative content relating to practices of a developmental, spiritual, or, according to the authors, healing nature, coming from, among others, meditation teachers, systemic setting coaches, mental coaches and mentors, motivational speakers or, in general, developmental trainers (coaches).

While the topics of content published by psychologists and development coaches are often similar, it is important to remember that they are still separate professions with fundamental differences.

The profession of psychologist is regulated, among other things, by the Act of June 8, 2001 on the profession of psychologist and the professional self-government of psychologists (Journal of Laws of 2019, item 1026). According to the law, obtaining entry into the list of psychologists requires, among other things, a master's degree in psychology from a Polish or foreign university, as well as a certain amount of professional training.

The profession of psychotherapist, on the other hand, has been regulated only recently - on January 1, 2024, amendments to the Law of August 19, 1994 on Mental Health Protection (i.e., Journal of Laws of 2022, item 2123, as amended) came into effect, providing access to practice only to persons with the appropriate qualifications, i.e., who have a diploma of completion of relevant practical training of several years, conducted with methods of scientifically proven effectiveness.

Unlike the profession of psychologist and psychotherapist, the profession referred to as "mentor/coach" is not regulated by the Polish legislator. Such a person may or may not have a degree in psychology, is not always bound by the rules of the code of professional ethics, and is not required to undergo regular supervision of his work^[1] (unlike certified psychotherapists). This, of course, does not imply a lack of professionalism of any mentor or coach (many of them also have had numerous trainings and follow market-recognized best practices), but nevertheless they are not subject to such requirements by law.

When the risk of confusion arises?

Both psychologists and those without psychological training often offer a range of self-development services and products, such as e-books, webinars, courses, lectures, and one-on-one sessions as part of their business, in addition to educational content.

The nature of these services should be clear to the recipient. In doing so, it should be kept in mind that the recipients may be people in a mental health crisis seeking help. For such people, it is particularly important to get clear information, for example, whether they are dealing with services provided by a coach, mentor, psychologist or qualified psychotherapist.

The risk of potential confusion can occur when people without psychological training use the tools and language of psychology/psychotherapy as part of the content and services provided. In principle, such practices are not against the law. In some cases, however, they may create a misleading impression about the nature of the services provided and mislead consumers. It may not always be clear to consumers whether they are dealing with a coach, mentor, psychologist or qualified psychotherapist.

It is worth noting that an act or omission by a trader that misleads a consumer may be considered an unfair market practice and result in negative legal (and consequently image) consequences.

Consumer misrepresentation as an unfair market practice

The prohibition of unfair market practices is contained in the Act of August 23, 2007 on counteracting unfair market practices, Journal of Laws 2023, item 845 (hereinafter "u.p.n.p.r.").

Such a practice is considered to be misleading behavior on the part of the trader, which is likely to cause the average consumer to make a contractual decision that he would not otherwise have made.

The concept of market practice includes any act of an entrepreneur (both action and omission), as well as any form of this behavior (conduct, statement, commercial communication, including advertising and marketing).

A misleading act or omission may be, in particular:

1. spreading false information;
2. Disseminating truthful information in a way that may be misleading;
3. Withholding or failing to clearly, unambiguously, or in a timely manner provide relevant product information.

In doing so, the concept of product also includes the concept of service.

Consequences of misleading consumers

The use of unfair market practices exposes the trader to liability to consumers. In such a situation, the consumer may pursue claims before the court for, among other things, the cessation of the unfair practice, the elimination of the effects of the practice, compensation for the damage caused on general principles, including demanding the cancellation of the contract with the obligation of mutual return of benefits and reimbursement by the trader of the costs associated with the purchase of the product. He is also entitled to demand an award of an appropriate sum of money for a specific social purpose (Article 12 of the u.p.n.p.r.).

For example, this means that a trader who offers and advertises development workshops, while citing false information about his credentials or the methods on which the workshops are based, may be obliged, for example, to refund to the consumer the price paid for those workshops.

The use of unfair market practices may also be considered a practice that violates the collective interests of consumers, with the risk that the President of the Office of Competition and Consumer Protection may impose a fine on the entrepreneur of up to 10% of the turnover achieved in the fiscal year preceding the year in which the fine is imposed (Art. 106 (1) pt. 4 of the Act of February 16, 2007 on competition and consumer protection, Journal of Laws 2023, item 1689, as amended, "u.o.k.i.k."). In this regard, an entrepreneur is considered not only a person registered in the CEIDG, but anyone (including bloggers, infuencers) who, in an organized and continuous manner, actually conducts business activity and derives profits from it.

For example, to date, the President of the Office's doubts have been raised by such practices as improper labeling of advertising materials in social media (the President of the OCCP pointed out that paid promotion of products or services without a clear indication that they are sponsored content should not take place - it misleads consumers and constitutes an unfair market practice), as well as misleading consumers about the guarantee of return of various types of investments and the risks associated with them. The President’s objections concerned, for example, misleading consumers by informing them about the safety of investment promissory notes and their profitability^[2] , as well as promises of high profit payouts in the case of investments in development projects^[3] . In the last case, the messages to consumers used the words, among others, "maximum security," indicating that the investments are intended for consumers "who value the security of the investment," exposing not only economic security, but also "legal (deed) security." According to the President of the OCCP, the one-dimensional narrative adopted in the information messages, exposing security and guarantees of obtaining benefits in the assumed amount, violated the interests of consumers and misled them.

In addition, the President's attention is drawn to the fact that entrepreneurs use intensive marketing to a particularly sensitive group of consumers, such as the deaf community^[4] .

As can be inferred from the above examples, the OCCP's interest is attracted by, among other things, communications that unfairly or non-transparently encourage consumers to invest or spend their money. However, the Office also pays attention to consumer protection in particularly sensitive spheres, and mental health protection is undoubtedly one of them. It is therefore important that the communications of those working in this area do not raise doubts.

It is worth remembering that proceedings in cases of practices that violate the collective interests of consumers are initiated by the President of the OCCP ex officio. This means that the initiation of proceedings does not require the intervention of third parties, such as consumers (although, of course, a notice from them often draws the attention of the office). A sufficient premise is the determination that the entrepreneur has violated the provisions of the Act (Art. 49 u.o.k.i.k.).

How to avoid misleading consumers?

It is important, first of all, that the information provided to the consumer by the trader about the services provided is reliable and true. It is worth noting whether the techniques or theories used are rightly described as based on the scientific method and verifiable. It is also impermissible to suggest to the consumer that the trader untruthfully possesses certain competencies. When citing qualifications or completion of studies, training or courses, it is worthwhile to allow the consumer to verify the relevant documents that confirm this (e.g. certificates, diplomas, etc.).

Second, it is crucial that the way information is communicated does not mislead the consumer. First and foremost, care should be taken to use clear and unambiguous communication with the consumer, leaving no doubt as to whether, for example, the services in question constitute psychotherapy or psychological consultation, or whether they are services based on proprietary or alternative workshop methods. In the case of mentoring services (especially those during which tools typical of psychotherapy are used), it is worth including a statement in the description of these services indicating explicitly that such a service is not psychotherapy. It is also worth informing the consumer what he or she should do if he or she needs individual psychological or psychotherapeutic consultation and where to seek such help.

Third, it is important to clearly and unambiguously provide the consumer with all relevant information about the service. The extent of this information will depend on the specific type of service or product. In any case, however, it is about such information that can influence the consumer's decision to conclude a contract, so, for example, about the type of service, the methods used, the competence and experience of the person offering the services.

Finally, when posting information in the online space, it is also important to keep in mind the rules for properly promoting your services on social media, which we wrote about in more detail here: https://hrp.pl/blog/goraczka-swiatecznych-zakupow.

^[1] Supervision involves regular consultation with another professional on issues concerning work with patients or related to the performance of a psychotherapist's duties.

^[2] https://uokik.gov.pl/aktualnosci.php?news_id=17640

^[3] The messages to consumers used the words, among others, "maximum security," indicating that the investments are intended for consumers "who value investment security," exposing not only economic security, but also "legal security (deed)." It reported "stable growth," a "safe, high" rate of return, or "one of the safer havens for investors." The business model, which consisted of an unconventional system of investing in the purchase of shares in special purpose vehicles belonging to the group (the number of which in the group was at least several dozen), the non-transparent structure of these companies and other companies in the group, the lack of sectoral supervision and the simultaneous emphasis on the safety of such solutions, made it difficult for consumers to assess the existing risks and verify the veracity of declarations about the achievement of the assumed goals. According to the President of the OCCP, such a one-dimensional narrative adopted in the information messages, exposing safety and guarantees of obtaining benefits in the assumed amount, violated consumers' interests and misled them. The President of the OCCP imposed fines of nearly PLN 12 million on the group companies, https://uokik.gov.pl/aktualnosci.php?news_id=20222

^[4] https://uokik.gov.pl/aktualnosci.php?news_id=18873