When is a social media post an ad?

Social media influencers are a great way for brands and businesses to get their message out to a younger demographic, with posts by influencers on Instagram, YouTube and Twitter often reaching a wide audience. But while they have long been used by cosmetics brands, others are now getting in on the act.

When using an influencer, businesses should take heed of both Advertising Standards Authority (ASA) and Committee of Advertising Practice (CAP) guidance and consumer law. Several influencers have recently had posts banned by the ASA, with the resulting stories appearing in multiple media outlets. Whether that's good or bad news depends on your approach to publicity.

What are the rules?

Enforced by the ASA, the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing - or CAP Code – is a set of rules which apply to all advertisements. It says any adverts should be legal, decent, honest and truthful, that advertisers are prohibited from misleading consumers, and that adverts must be recognisable as adverts.

The Consumer Protection from Unfair Trading Regulations 2008 also prohibits the “use of editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content". Content which falsely claims or gives the impression an individual is acting outside of their business purposes, is failing to identify a commercial intent behind a post, or is not disclosing something material, will be deemed illegal.

Is my influencer’s post an ad?

The ASA’s ‘Influencer's Guide’ states the following will be considered as an ad for the purposes of the CAP Code:

  • paid-for space or advertising your own products or services on an individual's personal channels;
  • affiliate marketing where the poster is paid per click or per sale;
  • advertorial (including social media posts) created in relation to your brand where you both pay the influencer and have some form of editorial control over the content (this can refer to money paid for a particular piece, an overall amount paid for being a brand ambassador and other ‘incentives’ (free products, gifts, trips, hotel  stays). Any of the following are likely to constitute ‘control’ by the ASA:
    • requiring overall approval from the brand or the ability to ask an influencer to change a post;
    • an obligation to post a certain number of times or at certain times of the day; and
    • any provision which restricts the influencer from saying or doing whatever they want.

It’s important to remember that where there is some form of payment but no control, the advertorial would still be subject to consumer protection legislation.

Many if not most influencer posts are likely to be viewed as an advertisement. Most brands will want an element of control in order to protect it against reputational damage caused by a rogue post.

In a recent example, Love Island star Olivia Buckland’s post advertising W7 eyeshadow was banned even though she wasn't paid specifically to post on social media and the post itself was outside the terms of her influencer agreement. The ASA felt it was sufficient that the influencer contract paid Ms Buckland and required her to "promote the brand and products in a positive light at all times".

How can we comply with the rules?

Consumers should be able to identify adverts without having to click or otherwise interact with the post. To ensure clarity, the ASA recommends the use of labels, including hashtags such as #ad, #advert and #advertisement (but not #sponsorship, #sponsored content, #spon, #sp, "in association with" or "thanks to [brand]" unless it's otherwise clear that the advertorial is an ad). And labels shouldn't be hidden away at the end of posts or lost amongst a sea of other hashtags.

How can I ensure our influencers comply?

Once you’ve gained an understanding of the rules, you need to make sure your influencers do too:

  • set out the influencer’s commitment and obligations to you (and yours to them) in an influencer agreement;
  • consider providing some basic training for your influencers. This could cover the law and the rules referred to above, as well as your business culture, values and marketing strategy;
  • check the content being produced on a regular basis to ensure it is compliant with the law and the ASA/CAP guidelines - and take action where it isn’t.

What happens if we get it wrong?

Any person or organisation can make a complaint to the ASA. The ASA will assess any potential breach of the codes, and contact you if they need more information. This is your opportunity to explain why you believe the complaint is unjustified or agree an informal resolution to the matter if you feel there has been a breach. Where you reach an informal resolution, your business’ name will appear in a reported list online.

Where you defend the complaint and the ASA concludes further investigation is required, you will have a chance to formally respond to the complaint, after which the ASA will make a final decision which will be published on the ASA’s website.

The ASA can impose sanctions on repeat offenders. These can include the withdrawal of advertising space or paid-for search advertisements and a request that all ads are pre-vetted. The adverse publicity of an upheld complaint can have a significant impact on a brand.

More information

The ASA website sets out the CAP codes and provides further guidance in its Influencer Guide and guide to advertising codes.

Thrings has a wealth of experience in assisting brands with copy clearance and defending ASA investigations, as well as preparing brand ambassador and influencer agreements. For more information, please contact Kate Westbrook or another member of Thrings’ Commercial team.

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