No excuses now for influencers who don’t disclose

By Sarah Burns 

Let’s get this straight from the start: the rules aren’t new. If you’re an influencer and you have a commercial relationship with the brand you’re promoting on social media you need to disclose that commercial relationship to your followers. However, although the rules haven’t changed, what is new is some guidance which explains really, really clearly – I’m tempted to say in words of one syllable, but that would be unfair – how the rules work.

As you’re no doubt aware, in the UK the Advertising Standards Authority (ASA) regulates promotions on social media via the Code of Non-broadcast Advertising and Direct and Promotional Marketing, known as the CAP Code, although the Consumer Protection from Unfair Trading Regulations 2008, enforced by the Competition and Markets Authority (CMA), may also apply. Given their joint responsibility for this area, it makes perfect sense that the two organisations have collaborated on this new influencer guidance.

Now I’m someone who can quote you section and sub-section of the CAP Code in my sleep and the guidance wasn’t a wakeup call for me, but although there was nothing new for me here, that doesn’t mean I was disappointed with it. In fact, quite the opposite. It’s called An Influencer’s Guide to Making Clear that Ads are Ads and, granted, that’s not the snappiest of titles, but it does do exactly what it says on the cover and I welcome it like I would welcome, say, breakfast in bed on a Sunday morning.

To determine whether a post qualifies as an ad or not, influencers need to apply the ASA’s two-part test and ask themselves 1) whether they are being paid to post and 2) whether their paymaster has any control over the post. If the answer to both those questions is yes – and they do need two yeses – it’s an ad.

However, the guide emphasises that money doesn’t have to change hands for payment to have taken place and free gifts, products, services, accommodation and trips can all constitute payment. It also highlights that if an influencer is paid to be a brand ambassador that counts as – doh! – payment, which is where influencer and former Love Islander Olivia Buckland recently fell down.

She posted about an eyeshadow palette from W7, a brand for which she was a paid ambassador. The ASA concluded that this gave W7 an element of control over Olivia’s posts, making the post in question an ad, but that wasn’t made clear, so the ASA upheld a complaint against her and W7, because influencers and the brands they work for are both to blame for breaches of the rules.

The guide also spells out that a brand is likely to have control not only when it stipulates that an influencer needs to include certain words, phrases, themes, messages or hashtags in a post, but also if it specifies the contents of an image, an action in a video or the type of content that needs to be created – it gives unboxing a product as an example. Even the option to ask for changes, irrespective of whether the brand exercises that option or not, could be construed as control.

What’s particularly helpful is that the guide talks influencers through affiliate marketing promotions, too, explaining that a post containing a hyperlink or discount code, where the influencer is paid for every click-through or purchase that tracks back to their content, is going to be an ad. And if an influencer is still in any doubt about the status of a post – and to be honest that shouldn’t be the case – there’s a handy flow chart to help them make the decision.

Of course, the ASA’s preferred label is #Ad or a variation on that theme, and the guide stresses that #Spon or similar, or phrases like ‘in association with…’ or ‘thanks to…’ or simply name-checking the brand won’t cut it. However, as long as the labelling makes it obvious that a post is an ad, there is some flexibility, as a recent ASA ruling on a complaint against influencer Zoë de Pass demonstrated.

Zoe didn’t use #Ad on a post promoting a range of shoes she had designed, but she did include a number of other tags and a link to a waiting list. When taken together, the ASA concluded that these made it clear that she had a business relationship with the shoe company and a commercial interest in promoting and selling the shoes, so it ruled that consumers would understand that the post was an ad, even though #Ad wasn’t present.

I know from the research Prizeology conducted earlier this year that members of the public have a fairly hazy understanding of the rules around influencer disclosure and they rely on influencers – and the companies they work with – to make sure they get it right. The publication of this guide means it’s really not that difficult, if it ever was, so if you’re an influencer, don’t have nightmares.

All you need do is sit down with a hot drink and a biscuit and read the guide.

The ASA and CMA have made it all absolutely crystal clear and there’s no longer any excuse for lack of transparency. I think we can all rest easy now.

Sarah Burns is Managing Director of prize promotions agency, Prizeology

Image courtesy of pixabay


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