Influencer marketing dominates social media these days. As well as marketing their own brand, social media influencers often use their platform to advertise products for other brands. However, social media posts featuring promotional content can sometimes be misleading to consumers. This is the reason for the introduction of new rules to clarify the law when it comes to individuals advertising for other companies through social media.
Who is enforcing the rules for sponsored content on social media?
- the Advertising Standards Agency (ASA – UK advertising regulator)
- the Committee of Advertising Practice (CAP – representing advertisers and media agencies)
- the Competition and Markets Authority (CMA – industry investigators and enforcers of consumer law)
What counts as advertising on social media?
An advert is normally seen as a company promoting their own products and services, including giveaways. People usually also recognize advertising as somebody paying for banner advertisements, search results, or promoted posts to appear in an obvious paid-for ad space. However, these are not the only types of advertising.
Affiliate marketing is on the rise, with individuals acting as the advertiser on behalf of another company. An influencer might promote a brand or specific product by posting links and offering discount codes. The brand will then pay the influencer for every click-through that they track back to them. Any content relating to affiliate links is an advertisement, which should be made clear.
Influencers collaborating with brands to produce content for their own channels is another increasingly popular form of advertising. If the brand pays the influencer and has editorial control over the content, even if it is only final approval, then they must declare this as advertorial. The payment doesn’t have to be money, as it is can often be in the form of freebies and gift packages.
Any commercial relationship with a brand can count as payment. If an influencer is given products or services for free, or paid to be an ambassador for the brand, then this qualifies. Accepting payment to create content isn’t a bad thing, and this alone doesn’t make it advertising under CAP guidelines. The brand must have some control for it to count as advertising. They might instruct the influencer to use particular phrases or hashtags, perform a specific action, or post at certain times or a certain number of times. The brand might also want to check the content and request changes before the influencer can post it.
If there is some form of payment but the brand has no control over the influencer’s content, then it is more like a sponsorship. The CAP Code does not cover this, and complaints to the ASA about sponsorships will not be investigated. However, the CMA still enforces legislation to protect consumers which states that influencers must disclose whether they received any form of payment for posting about a product.
What do social media influencers need to do to legally declare advertisements?
Ads need to be clearly identifiable, so that consumers can clearly recognize that the content is advertising and choose whether to interact with it further or not. Influencers often work their marketing into their usual style of content, so it might not be obvious at first that the content is an ad. The influencer is acting as a publisher, so it is their responsibility to make sure that it is clear to the audience that the content is advertising on behalf of the brand.
Influencers can make clear statements or include prominent labels within the content to declare that it is an advertisement. This needs to be upfront before consumers click or continue to view the content. The ASA approves of titles, posts, or hashtags which include clear labels such as:
- Ad ✔
- Advert ✔
- Advertising ✔
- Advertisement ✔
It is riskier to use labels that are not as straightforward. It depends on the context and the content itself whether other labels make it obvious enough that it is a paid advertisement. The ASA does not like the following labels, because they fail to tell the full story:
- Sponsorship ✘
- Sponsored content ✘
- Spon ✘
- In association with (brand) ✘
- Thanks to (brand) for making this possible ✘
- Mentioning the brand/tagging their social media handle ✘
You may have seen other influencers doing things like this, but the advertising regulations in their country could be different. In the UK, if your content falls under the CAP Code (involving both payments to the influencer and brand control), then you must declare it as an advertisement according to the rules above.
What if an influencer receives payment but has total control over their content?
It isn’t illegal for brands to simply pay influencers for product promotion. However, the CMA requires that any such endorsements must also be made clear. Influencers and brands must disclose commercial relationships and ensure that the content is clearly identifiable as an ad. To be on the safe side, you can follow the same guidelines as above. The influencer should only be expressing their genuine views about the product. Otherwise, if the brand controls what the influencer can say about it, then it counts fully as advertising, and the rules above absolutely apply.
What other rules are there for advertising and affiliate marketing?
Making it obvious that your content is advertising is just the start when it comes to marketing laws. If you are marketing your own products or marketing another brand’s products as an affiliate, then you should pay attention to other areas of the law as well. You need to make sure that your advertising is not misleading and that you can back up any claims that you make about a brand, product, or service. For example, you cannot promote a brand as being cruelty-free or eco-friendly if you don’t have the evidence to support this! Certain products, such as food supplements, have even stricter rules regarding the promotion of nutritional or health claims. If you plan on promoting your own or another brand by running a giveaway or prize draw, then you need to check the laws for promotional marketing. You also need to make sure that you are sticking to the law if you are advertising an age-restricted product such as alcohol.
What happens if people make complaints to the ASA about an influencer?
The ASA dismisses complaints if they do not find a problem when they assess the issue against their codes. If they need more information about the issue in order to investigate a complaint, then the ASA will get in touch with the influencer and the brand. It may be a bit scary to hear from them, but they will just be trying to work out if there really is a problem. If you made an honest mistake, then you can admit it without punishment.
The ASA will work with influencers and brands to resolve problems and ensure that they are advertising responsibly according to UK standards. They will provide guidance and ask for written agreement from the brand and influencer that they will remove or change the offending advertisement. The ASA posts a list of current cases on their website every Wednesday, and the influencer/brand case will then appear on this list.
The influencer and brand will always have the opportunity to respond to the complaint. If the ASA sees reason to conduct a full formal investigation, then the ASA Council will assess the evidence and make a final decision over whether the advertisement has actually broken any rules. Their final rulings also appear on the website every Wednesday.
If the ASA finds that there is a problem with your advertisement, then you will have to either change or remove it. This will also apply to any similar content going forward. The ASA will keep in contact with influencers and brands until they adhere to the rules. If they continue to disregard the law, then the CAP Compliance Team will step in. They have the ability to enforce sanctions including withdrawal of trading privileges, blocking access to advertising space, pre-vetting material, and adverse publicity.
Where can you go for help with influencer marketing regulations?
There are plenty of resources out there to help influencers and the brands that they work with to make sure that they aren’t breaking advertising laws. The ASA and CAP have an advice database which you can browse through. You can also get tailored advice if you need help to write advertising copy within the guidelines. The CMA has published advice for online endorsements and being honest about them. The International Consumer Protection Enforcement Network (ICPEN) offers their own guidelines for digital influencers. You can also get more information from the Internet Advertising Bureau (IAB) UK, or access resources for commercial relationships from the Incorporated Society of British Advertisers (ISBA).