April 19, 2021

Volume XI, Number 109

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April 16, 2021

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Are You Influencing Responsibly?

A recent UK Advertising Standard’s Authority (ASA) study has revealed that many social media influencers are routinely breaking consumer and advertising laws.

The findings of the study are important for social media influencers, who should ensure that they are fully transparent about when they are posting advertising content and for companies who work with social media influencers, who are equally responsible for ensuring that brand partnerships are sufficiently disclosed in the influencer’s social media posts.

Both the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and UK law require marketers to leave consumers in no doubt about when they are engaging with advertising. This includes advertising on social media. Despite this, there have been a rising number of complaints to the ASA about whether influencer advertisements are appropriately disclosed on social media. In 2020 alone, there was a 55% increase in complaints received about influencers from the previous year (from 1,979 to 3,144). 61% of the complaints received related to ad disclosure on Instagram.

In September 2020, the ASA carried out a three week monitoring exercise to review the Instagram accounts of 122 UK-based influencers and over 24,000 Instagram stories, posts, IGTV and reels to assess whether advertising content was being properly disclosed and was obviously identifiable as such.

The monitoring exercise was largely focused on Instagram stories because the complaints made were predominantly about this particular platform feature.

The ASA’s monitoring exercise found that there was a disappointing overall rate of compliance with the rules on making it sufficiently clear when influencers were being paid to promote a product or service. In fact, nearly one in four Instagram stories were categorised as marketing but only 35% of them were clearly labelled and obviously identifiable as advertising.

The ASA made the following findings:

  • There was inconsistent disclosure across Instagram stories, i.e. when a piece of ad content spans a number of consecutive stories, unless it’s absolutely clear that this is part of the same posting, each story must be disclosed as an ad.

  • There was inconsistent disclosure across Instagram stories, IGTV, reels and posts, i.e. there were instances where a post would be accurately disclosed as an ad but a corresponding Instagram story was not.

  • There was a lack of visibility of ad labels, i.e. where Instagram stories were labelled as ads, labels were sometimes in a small font, obscured by the platform architecture or otherwise difficult to spot; mainly due to being in a very similar colour to the background of the Instagram story where it was placed.

  • The use of #affiliate or #aff usually had no additional upfront disclosure and, as such, use of these terms was not likely to be enough to disclose to users the advertising nature of the content.

  • Influencers were relying on bios or past posts to demonstrate that they were connected to a product, instead of making this explicitly clear each and every time that they were sharing advertising content.

The ASA has written to the influencers that it monitored and has requested assurances of future compliance. It has said that sanctions will follow if things do not improve, for example, repeat offenders could find themselves being listed on the ASA website and/or facing further action from social media platforms and the Competition and Markets Authority.

The ASA has also contacted the main brands partnering with the non-compliant influencers because they are held equally responsible for failing to adequately disclose advertising content.

There’s simply no excuse not to make clear to the public when positive messages in posts have been paid-for by a brand,” says ASA chief executive Guy Parker. “While some influencers have got their houses in order, our monitoring shows how much more there is to do. We’ve given influencers and brands fair warning. We’re now targeting our follow-up monitoring and preparing for enforcement action.

The key takeaway here is that it must be obvious to consumers before they interact with a social media post if what they are engaging with is advertising. Generally the use of #ad (or similar) is the clearest way of communicating the commercial nature of social media content, but a platform’s own disclosure tools, for example, Instagram’s Paid Partnership tool, can also help to distinguish advertising content. Being up-front about business partnerships on social media is crucial!

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Copyright 2021 K & L GatesNational Law Review, Volume XI, Number 97
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About this Author

Keisha Phippen IP Procurement & Portfolio Management Attorney K&L Gates London, UK
Associate

Keisha Phippen is an associate in the firm’s London office where she is a member of the IP procurement and portfolio management practice group.

Professional Background

Prior to joining the firm Ms. Phippen served as a commercial lawyer at a full service law firm based in the UK where she provided specialist advice on a range of commercial matters; drafted and developed a wide variety of standard and bespoke commercial documents; and supported clients with all-party contractual negotiations through to post completion queries.

Primary Practice

  • IP...

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