Influencer marketing – how to protect your brand
As the ASA escalates action against influencers who breach social media advertising rules it’s important to know the what the rules are to ensure influencer marketing does not fall foul of these.
On 18 January 2022, the Advertising Standards Authority (ASA) announced the launch of a new campaign on Instagram to highlight social media influencers who are continuing to break its ad rules, despite already being identified on the ASA’s website as non-compliant and repeated warnings from the ASA.
In June 2021, the ASA launched a webpage to publicly name influencers who regularly fail to disclose their paid-for posts. This initiative followed the ASA’s March 2021 report which revealed that only 35% of Instagram ad posts are compliant, despite the efforts to educate the industry.
An influencer marketing campaign, using brand association and collaboration, can be a highly effective way to reach new customers. It is often seen as a more effective way for brand owners to ensure that their products and services are being advertised to the target market . Influencer marketing works because of the high level of trust that influencers have often built up with their followers, and many influencer have turned this into a full time career. However, given the power influencers now hold, many with access to millions of followers, brand owners need to manage this relationship carefully to protect their interests. It is particularly important to ensure the influencer complies with social media advertising rules and regulations, especially given a rapid escalation in consumer complaints since the start of the pandemic. The majority of these relate to a failure to disclose paid-for advertising in posts. Breaches can lead to sanctions and adverse publicity which puts influencers at serious risk of reputational harm. This can also prove highly damaging to a brand’s standing because of its association with the influencer.
Know the rules
The Competition and Markets Authority (CMA) is the regulator who enforces the consumer protection laws and is the UK’s primary competition and consumer authority. The ASA is the independent regulator which enforces the Committee of Advertising Practice (CAP) Code. The rules highlight the need for transparency in disclosure of advertising content and are applicable across social media posts and content such as Instagram stories, reels and IGTV. In particular:
- Ad content must be properly labelled and clearly identifiable as such, using #ad, advert, advertisement, consistently across all media formats. Influencers cannot rely on their bios or past posts to make any brand connection clear.
- Ad content must make it clear when an influencer is providing affiliate marketing and when products advertised are gifted.
- Ad labels must be clearly visible – not be hidden or obscured by ‘swipe up’ commands, small font sizes, platform architecture or made otherwise ‘hard to spot’.
- Ads must not give a false impression that the marketer is acting as a consumer.
Consumers should be able to recognise that something is an advertisement, without having to click or otherwise interact with it. As with advertising generally, it is important that no misleading or exaggerated claims are made about the product or service. Careful consideration should also be given when using giveaways, draws, prizes and competitions as this is a heavily regulated area. In particular, all applicable conditions should be communicated, and the promotion administered fairly and efficiently.
Enhanced monitoring and enforcement
The ASA is proactively monitoring levels of compliance and stronger enforcement action is being taken against those who consistently fail to disclose advertising. The ASA launched a new web page last June to publicly name the worst offenders. A name is only removed after a minimum of 3 months exposure, provided the influencer in question has become consistently compliant. The ASA launched a further campaign in Jan 2022 using Instagram ads to highlight social media personalities who are in persistent breach. This is powerful because it targets the same audience they are seeking to influence. Its initial focus is on six influencers, who are mainly celebrities from Love Island.
Where appropriate regulators can also consider more direct sanctions. This might involve working with social media platforms to have non-compliant content removed, referring influencers to statutory bodies such as Trading Standards or statutory action including possible fines. The ASA has made it clear it considers that businesses who pay for influencer services are just as responsible as the influencer for failing to property disclose advertising content. Therefore, brand owners should not assume that they will be immune from enforcement action and the negative publicity that can ensue.
Manage the risks
A contract, together with appropriate pre-contact due diligence regarding the suitability of a given influencer, will help brand owners to manage the risks of influencer marketing. The contract should ensure that both parties are clear about their obligations under this type of marketing arrangement. Commercial terms should clearly state the services required (such as the number and frequency of posts) and the basis upon which fees are paid. It should also stipulate the need for influencers to comply with brand guidelines/policies, social media platform rules and advertising standards, in order to give brand owners some ‘control’ over the marketing delivery. Clauses can be included enabling the arrangement to be terminated if these terms are breached. It is also important to get clarity over who owns the Intellectual property (IP) rights to content. Unless the brand owner can own the IP or obtain a licence to use it, the value of the influencer might be limited.
The CMA has published guidance on social media endorsements and, together with the ASA, provided detailed guidance for influencers. In October 2021, the ASA published a resource page on its website to help brands and influencers comply with rules for running giveaways, prizes, competitions, and other promotions on social media. As social media marketing is a specialised and developing genre with complex rules, it is advisable to seek legal advice before entering into any marketing agreement with an influencer. If you would like further guidance on this topic, please contact Charlotte Burroughs at [email protected].