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Influencer Advertising – Lexology

Influencer advertising continues to come under scrutiny from watchdog bodies, including the UK’s Advertising Standards Authority (ASA). The ASA has introduced new measures to address the challenge of underlabeled or otherwise irresponsible influencer advertising.

Influencer advertising is no longer a new phenomenon and the rules in this area have remained largely unchanged. However, there is a feeling that regulators are still trying to catch up with an industry that consistently flouts the rules.

What are the latest regulatory developments and what is on the horizon?

Reminder: rules and regulatory framework

Advertising in the UK is regulated by a combination of laws and self-regulatory codes of conduct. For influencer advertising, the most relevant rules are the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). The CAP code applies to influencer marketing in non-broadcast media and is enforced by the ASA. The CPRs apply to business-to-consumer commercial communications and prohibit “unfair commercial practices” (including advertising). The Competition and Markets Authority (CMA) or Trading Standards can take legal action for violation of the CPRs.

The CAP Code requires that marketing communications be “obviously identifiable” as such (Rule 2.1). In terms of influence, this means that advertisers must leave consumers in no doubt that what they are engaging with is advertising. At a minimum, the ASA is likely to expect these messages to include a prominent label from the outset to emphasize that a message is a marketing communication. He generally argued that the clear and prominent use of #AD is the clearest way to communicate the commercial nature of advertising. More recently, it has accepted that using a platform’s own disclosure tools (such as Instagram’s paid partnership tool) can also help distinguish advertising from other content.

It is important to remember that clearly indicating that an item is an ad is not the only requirement for ad content. Ads must also (among other things) be socially responsible and not mislead consumers in any significant way or cause serious or widespread infringement.

Who is responsible for compliance?

If there is a business relationship between an influencer and a brand, all posts that feature that brand or its products/services must be disclosed using a clear tag such as #ad. If influencers don’t make it clear enough when they’re paid to endorse or promote a product or service, they’ll be in violation of the CAP code.

Importantly, brands that pay influencers to promote their products and services are also held jointly liable for such violations, regardless of any contractual agreement with the influencer and even when an influencer acts outside of the contractual mandate.

In November 2020, the ASA ruled that a TikTok post on influencer Emily Canham’s account featuring a discount code for GHD hair straighteners did not make it clear to those viewing that it was ‘advertising. There had been a financial agreement in place between Emily Canham and GHD and under this agreement, Emily Canham was hired to publish posts on her social media accounts. This particular message was not part of this agreement, but because Emily Canham had a business relationship with GHD and the message clearly promoted GHD products, the ASA has always maintained that it was an advertisement. and that the commercial nature of the content should have been made. release. The decision was made against Emily Canham and GHD.

In January 2020, the ASA ruled that an Instagram post on Molly Mae Hague’s account broke rules for not being clearly identifiable as an advertisement. Pretty Little Thing (PLT) were also held liable here, even though they had a contract in place that required all advertising services for PLT to be clearly identifiable to the consumer, including the influencer tagging Instagram posts as a “paid partnership with prettylittlething”. . They said the station was an “organic” feeding station and outside the scope of their contractual agreement. However, since Molly Mae had a financial relationship with PLT as a brand ambassador and the post featured her wearing PLT product that was also tagged on PLT’s Instagram account, the ASA found that PLT had a sufficient level of control over publication. to fall within the scope of the CAP code. Both were held responsible.

Complaints about influencer advertising remain high

The challenge of insufficiently labeled or otherwise irresponsible influencer advertising has been an ongoing issue for the ASA for the past few years. The first decision on influencer advertising was published in 2012, against an article by Wayne Rooney/Nike.

Most influencer marketing appears alongside independent/editorial content in a very similar style, so it’s often not immediately obvious whether or not something is an advertisement from the context alone. ASA research on advertising labeling and Ofcom research show the difficulty consumers have in distinguishing advertisements from other editorial content.

The ASA has invested considerable resources and effort in helping the influencer marketing industry understand its responsibilities under the Advertising Rules, particularly those related to ad disclosure. He has published numerous rulings on ad disclosure, conducted trainings and produced a series of online tips, including the Influencer’s Guide to Making It Clear That Ads Are Ads (published September 2018 and revised February 2020) and a cheat sheet designed to help Love Island contestants navigate the rules.

Despite the work of the ASA, complaints about influencer advertising remain high. According to the ASA’s 2019 annual report, complaints about influencer posts accounted for more than a quarter of all online complaints. 2020 saw a 55% increase over 2019 in complaints received about influencers, from 1,979 to 3,144 individual complaints.

In March 2021, the ASA published a report on the disclosure of influencer social media ads which revealed a “disappointing overall compliance rate“by influencers so that it is sufficiently clear when they have been paid to promote a product or service. He notes that the ASA continues to see”far too many incidences of non-disclosure, which threaten to discredit this marketing discipline and breed consumer distrustKey findings of the report included: inconsistent disclosure in back-to-back stories; inconsistent disclosure in posts and corresponding stories, IGTV and Reels; poor ad label visibility; affiliate marketing non-disclosure and misuse of the #affiliate and #aff labels; and the misplaced reliance on biographies and past posts to make it clear to consumers that they are connected to a product.

Are regulators running out of patience?

Following the results of this monitoring exercise, the Committee for Digital, Culture, Media and Sport launched a survey on the power of online influencers. It will focus on hidden advertising and the frequent lack of transparency around the promotion of products and services. The Committee will consider whether regulation is necessary and, if so, what form it should take.

The CMA has also conducted its own work in this area. In October 2020, it launched an investigation into hidden advertising on Instagram after concerns were raised that too many social media users were posting content without specifying when they had been paid to do so. The AMC found that Instagram was not doing enough to prevent this, leading Facebook (now Meta, owner of Instagram) to agree to implement changes and new tools on the platform to make it easier for all users to comply with consumer protection law when posting. contents.

In June 2021, the ASA launched a dedicated new page on its website to name and shame influencers who repeatedly break the rules, as part of an escalation in non-disclosure enforcement measures. Named influencers will be on the webpage for three months and subject to a period of enhanced monitoring spot checks. If the named influencers continue to break the rules, the ASA said it would apply further sanctions, including removing ads against them, working with social media platforms to have content removed or firing them. to statutory bodies for possible fines.

Action will also be taken against brands that repeatedly break the rules. The first influencers to be named were Chloe Ferry, Chloe Khan, Jodie Marsh and Lucy Mecklenburgh. They were all contacted by the ASA compliance team and asked to provide assurances that they would include clear and straightforward labels in their advertising posts. They were appointed because they did not provide this assurance or later denied it.

The ASA has since shown its readiness to follow through on its tougher sanctions threats, using targeted ads to highlight six social media influencers’ violations to the same audiences they seek to influence. Francesca Allen, Jess Gale, Eve Gale, Belle Hassan, Jodie Marsh and Anna Vakili have all previously been named and humiliated on the ASA website for not flagging their ads. Since going to the web page they have not followed the rules of publicity and improved disclosure.

On January 18, 2022, the ASA announced that it was now running ads against these influencers on Instagram, with the aim of alerting consumers (and particularly influencer followers) to their violation of the rules. The ASA says that when it sees the necessary changes to disclosure practices, it will reverse targeted ads, but if noncompliance persists, it will look to more direct forms of enforcement.

This is certainly a step forward in the ASA’s enforcement action, but whether it will have the far-reaching, industry-wide effect that the ASA is aiming for remains to be seen. .

The fact that influencers are already ignoring the ASA’s name-and-shame campaign suggests that it may have limited effect and that for brands and influencers, producing content that feels authentic and real is more important than advertising. negative that they can receive by not respecting the rules.

Stricter regulatory interventions in this area are likely. The ASA cannot impose financial sanctions itself, but it has worked with the CMA in the past on enforcement and guidance. Since the CMA has taken an active interest in this area itself, it is certainly possible that fines will be imposed in the future if things do not improve.

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