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Social Influencers are not immune from advertising codes and laws - Ads must be identified as Ads

Social influencers are increasingly being paid to promote and market a brand's products and that is set to continue in 2019. Positive endorsement of a brand's products by a well-known influencer can undoubtedly be a successful way to increase sales. Whilst this practice is not itself illegal there are legal requirements that must be met and it is important that the payment (in money or in kind) for the endorsement is disclosed.

Over the years we have seen the ASA and the CMA bring action against a number of influencers who have not made it clear that they are being paid for their tweet, blog or other social media activity that they carry out on behalf of a brand. The ASA has now issued guidance to help influencers to identify when their content constitutes an ad which is covered by the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and how to comply with both the rules in the CAP Code and also with consumer protection legislation.

When is an ad an ad?

The type of content produced by influencers that could constitute an ad under the CAP Code and therefore needs to be clearly identified as an ad, include the following:

  • Paid-for space;
  • Posts regarding influencer's own products/services;
  • Affiliate marketing eg. affiliate linked products / discount codes to products where the influencer gets paid for every click through;
  • Advertorials provided that the brand has both paid for and had some form of editorial 'control' over the content which could be simply final approval. Note that payment doesn't have to be monetary and free products, gifts, hotel accommodation etc are all likely to constitute 'payment'. Further, 'control' could simply be final approval or anything which means the influencer was not free to say or do what they wished whenever they wished.

How to clearly identify an ad as an ad

An ad needs to be 'obviously identifiable as such'. If a reader cannot easily recognise content as an ad then more needs to be done.

So how can you clearly identify an ad?

  • Inclusion of a label such as "Ad" or "Advertisement" is the simplest way of doing this. Beware of phrases such as "in association with", or terms such as "sponsorship" or "#spon" which the ASA has previously found to be insufficient;
  • Ensure that the label you use is prominent and not hidden. Ideally the label should be at the beginning eg. in a header or thumbnail. A reader should not be required to hunt for the label or click through in order to find out if an ad is an ad.

Identification is not the end of the matter

Depending upon the subject matter of the content, other rules within the CAP Code and other legislation might be relevant such as those relating to gambling, alcohol, food safety, children and prize draws.

Even if content produced by an influencer does not constitute an ad under the CAP Code (eg. where an influencer is paid for content by a brand but the brand has no editorial control over the content), care still needs to be taken to ensure compliance with consumer protection legislation which requires that paid for content is clearly marked as paid for by using a term such as Advertisement Feature or Advertisement Promotion. The CMA has taken action in a number of cases where paid for endorsements have not been disclosed.

The Take Away - Transparency

The power of influencers to market a brand is unquestionable but get it wrong and that can have serious legal implications as well as a detrimental effect on a brand's reputation.  There needs to be trust between a customer and a brand and in order for there to be trust, transparency regarding paid for endorsements in any influencer marketing as well as authenticity is crucial.

The original ASA "An Influencer's Guide to making clear that ads are ads" guide can be accessed here.

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