Author: Michelle Waknine
Michelle Waknine, Associate, Fladgate LLP (firstname.lastname@example.org)
Avid social media users will be well-acquainted by now with the concept of influencer marketing, which has evolved alongside the rise of mobile technology and social media and into an increasingly popular advertising tool. Influencer marketing involves the engagement by brands of individuals (usually celebrities or industry experts) with large followings on social media such as Facebook, Twitter and Instagram to advertise or recommend products. Depending on the influencer/amount of followers, it has been reported that charges per post can reach up to £500,000, and this has fast become an extremely lucrative industry.
Advertising in the UK is regulated by the Advertising Standards Authority (ASA), and the ASA has previously taken action in respect of a number of influencer posts for failing to make clear that they were advertisements. The ASA have now, in collaboration with the Competition and Markets Authority (CMA), published a new guide to clarify the rules on influencer marketing and to make clear what the ASA considers to be an advertisement.
George Lusty, the CMA’s Senior Director for Consumer Protection has commented on the new guidelines:
“If celebrities or influencers are posting about a product on social media, they must make it clear if they’ve been paid to promote it, or have been gifted, loaned a product or thanked in some other way by a brand. No one should be left thinking that a Tweet or Instagram post is just the person’s opinion when it’s not.
“We’ve already launched an investigation into concerns that social media stars are not properly labelling their posts, and we hope this guidance will help all influencers stay on the right side of consumer law.”
The guidance contains a lot of practical tips for influencers to avoid falling foul of the rules. In terms of making it clear that an ad is an ad, the guidance states that the influencer should make this “obvious” to people. Including a “#ad” or “#advert” is encouraged, however, other labels such as “#sp” or “#spon” are considered to be more vague and therefore riskier. Burying the label “in a sea of hashtags” at the end of the post’s caption is also less likely to cut it according to guidance.
The guidance also discusses the criteria for what qualifies as an advertisement under rules, i.e. if there has been both “payment” (whether specifically for the post, or if there is any kind of commercial arrangement) and “control” by the brand over the content (e.g. if the brand reserves the right to check/approve the content before it is posted).
Complaints are also touched on within the guidance, as well as other advertising requirements to take into consideration (such as advertising age-restricted products and running promotions).
See the guidance in full at the following link: https://www.asa.org.uk/uploads/assets/uploaded/3af39c72-76e1-4a59-b2b47e81a034cd1d.pdf
Failure to disclose a commercial relationship can leave both parties at risk of action from the ASA. So, if you are an social media influencer or a brand/company that engages social media influencers, it will be crucial to ensure that the new guidelines are complied with in order to avoid ASA action and/or reputational damage, and to ensure that adequate contractual arrangements are in place containing obligations in line with the new guidelines.