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Influencing change: ASA sends warning on social media marketing

A recent study by the UK Advertising Standard’s Authority (ASA) has found that the majority of social media influencers are (still) breaking consumer and advertising laws.

The ASA’s report, “Influencer monitoring report (March 2021)” (the ‘Report’) was undertaken as part of the ASA’s commitment to have more impact online, as well as be more proactive in their regulation and demonstrates its increased monitoring function.

What the rules say

The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the ‘CAP Code’) rules require that:

  • Marketing communications must be obviously identifiable as such (rule 2.1);
  • Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context (rule 2.3); and,
  • Marketers and publishers must make clear advertorials are marketing communications; for example, by heading them ‘advertisement feature’ (rule 2.4).

The CAP Code applies to ads in all non-broadcast media, including digital platforms, such as Instagram, Facebook, YouTube, Snapchat, Twitter and TikTok.

What the Report says

Despite the ASA issuing guidance to influencers (including ‘The influencer’s cheat sheet to declaring ads on social media’) and the previous rulings on the topic of social media advertising, the ASA concluded that neither influencers nor the associated brands are taking enough care to ensure that consumers know when something is an advertorial.

As the majority of influencer related ad complaints originate on Instagram, the ASA focused on this platform for the purpose of its three week monitoring exercise in September 2020. A total of 122 UK based influencers were monitored, which included the observation of 24,000 Instagram Stories (as previous complaints were predominantly linked to the use of this feature).  Normal posts, IGTV and the Reels function were also scrutinised.  The Report concluded that nearly one in four of those 24,000 Stories were categorised as marketing and that only 35% of those Stories which were assessed to include advertising were correctly labelled.

The Report states that the ASA continue to see “far too many incidences of non-disclosure, which threaten to bring this marketing discipline into disrepute and breed distrust in consumers”.

The Report’s findings and recommendations on common issues to watch out for are:

1. Inconsistent disclosure across Stories

Each individual Story must be disclosed as an ad unless it is explicitly clear it is part of the same posting. It is not enough to label only the first Story as subsequent continuations may not be obviously recognisable as ads.

2. Inconsistent disclosure across Stories, IGTV, Reels, posts

Sometimes a post on one of these mediums was disclosed as an ad but the other mediums were not. For example, the post accurately stated the content was an ad, but the corresponding Story did not.

3. Visibility of ad labels

Labels disclosing the content as an ‘ad’ were often in small font or difficult to spot, perhaps due to being obscured by platform architecture or written in a similar colour to the background of a Story. Labelling must be easy to spot on a mobile, desktop or any other devices. The ad label or #ad, so frequently recommended in previous ASA rulings, often appeared at the end of the text, or below the ‘fold’. Instead, ad disclosure should be the first thing the consumer sees.

4. Affiliate content is still an ad

As mentioned in previous ASA rulings, “#affiliate” or “#aff” appearing with no further disclosure is not enough to disclose to users the advertorial nature of the content. It is recommended to use #ad, even when the post includes affiliate marketing.

5. Own brand ads

Influencers should not rely on bios or past posts to make it clear they are connected to a product. If they state in their Story ‘here is my book’ or ‘download my app’, it is likely clear they are connected to their product. When content does not make it clear, the ad must be labelled in a sufficiently prominent manner.

What does this mean?

Many of the rules contained in the CAP Code are underpinned by legislation including the Consumer Protection from Unfair Trading Regulations 2008, and so if an influencer fails to sufficiently disclose that a post is in fact marketing, then there is a real risk that the influencer (and the brand) are not only breaking the CAP Code, but they may be committing a criminal offence.

The ASA has said that with the guidance now available there is simply no excuse for influencers not to make clear to consumers when content has been paid-for by a brand.  Further, the ASA warns that they have written to all the influencers they monitored as well as a number of brands who featured in the ads and has ‘put them on notice’ that they will conduct future monitoring spot checks.  Should those spot checks (or indeed any consumer complaints) reveal further incidences of non-compliance, they will take enforcement action. Sanctions can include removal of ads, public rulings, a dedicated non-compliant page on the ASA website (and the associated bad PR that comes with any public reprimand), withdrawal of and restrictions on paid search ads on platforms and, in serious cases, referral to Trading Standards and the Competition and Markets Authority.

How can influencers and brands ensure compliance?

It is clear that brands cannot turn a blind eye to their influencer’s actions and that they can be held jointly accountable if an influencer fails to follow the rules. Brands and influencers should:

  • Be careful with their contract drafting (e.g. regarding hashtag obligations and disclosure requirements on posts) and have a robust approval process and proper monitoring;
  • Ensure that marketing communications are identified as such by displaying #ad or ‘ad’ in a prominent, front of centre position on social media posts, regardless of whether there is a contractual arrangement in place to advertise a product, or whether the arrangement is more akin to that of an affiliate relationship;
  • Avoid using labels such as ‘supported/funded by’, ‘in association with’, ‘thanks to [  ], ‘sponsorship’, #aff/affiliate and #sp/sponsor’;
  • Ensure labelling is prominent across all formats, rather than buried in a sea of hashtags, and ensure labelling is included on posts in which it is not explicitly clear, when viewed in isolation, that the brands being discussed are brands in which the individual posting has a financial interest;
  • Use tools that help to distinguish advertorial content; and,
  • Seek legal advice from a marketing specialist.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2021.

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