Influencer #ad rules could still be open to interpretation

Influencer #ad rules could still be open to interpretation

The rise of influencer marketing in recent years has brought with it more than a few legal and ethical questions.

In September 2018 the ASA launched an Influencer Guide advising online content creators how to disclose commercial relationships with brands. But there are still a few grey areas.

To get a clearer picture of where influencers stand, we’re going to take a closer look at why the rules are needed, what they say influencers have to disclose to their audiences, and where there’s room for improvement.

Why are rules needed?

Being ‘an influencer’ is a relatively new career option. Because of this, content creators have had to learn and adapt as they go along. Perhaps unsurprisingly, some have been caught flouting the rules (either accidentally or deliberately).

For example, it has been common practice to disguise ads as editorial content or bury the #ad label in amongst dozens of other hashtags where it’s unlikely to be noticed. In response, the Advertising Standards Authority (ASA) have banned a number of posts for failing to make clear that they were ads.

Posts from Louise Thompson and Marnie Simpson have been subject to ASA action. And there has been a growing public backlash over the unrealistically extravagant and staged nature of ad content, which Scarlett London quickly realised, when one of her posts went viral for all the wrong reasons.

Influencer #ad rules could still be open to interpretation

Several followers seem to have spotted that London’s cup of tea was empty and her plate of ‘pancakes’ looked suspiciously like tortilla wraps. And then there was the not-too-subtle placement of a bottle of Listerine mouthwash on her bedside table in amongst a room full of balloons.

On this occasion, clearly labelling the post as an advert wasn’t enough to save London from a flood of criticism. While her loyal audience may have been sympathetic to her over-the-top aesthetic, the apparent lack of authenticity was met with ridicule by the wider social media community. This unfortunately escalated into nasty comments and even death threats.

The question is whether the ASA’s guidelines are comprehensive enough to help influencers like London avoid this kind of negative response.

Who are the ASA? And why should I care?

In a nutshell, the ASA is the UK’s independent advertising regulator across all media, who make sure ads across UK media stick to the advertising rules laid out in the Advertising Codes, written by the Committees of Advertising Practise (CAP).

Their influencer guide was developed in conjunction with the Competition and Markets Authority (CMA). It sets out what the rules are around commercial relationships, including what the ASA considers to be an ad, how to disclose a post is an advert as well as outlining the CMA’s requirements for other kinds of endorsements.

The APA’s guidelines aren’t actually new. Instead, they are comprised of rules set out by CAP, CMS and CPR that have been brought together in one place for easy reference. It’s a valuable document that may help clarify the rules for influencers.

Where does responsibility lie?

Significantly, the guide is aimed at the content creators themselves, rather than the brands paying or enticing them to publish, which highlights in their view where they believe the responsibility should ultimately lie.

What are the rules?

So what do the latest rules state and how can bloggers and social media influencers keep on the right side of consumer law?

1. Ads must be obviously identifiable as such

Guy Parker, the ASA's chief executive has said that "people shouldn’t have to play the detective to work out if they’re being advertised to".

The ASA Guide states that:

“Under the CAP Code ads ‘must be obviously identifiable as such’. This means that consumers should be able to recognise that something is an ad, without having to click or otherwise interact with it. Since it needs to be ‘obvious’, consumers shouldn’t have to work too hard to figure it out.”

Consumers should be able to immediately recognise that something is an ad. If this isn’t explicitly apparent, content creators “need to do more” to make it unmistakable. However, this is a rather hazy guideline. It states something must be done, but it doesn’t specify what that something is exactly. This could muddy the waters and makes things more difficult for influencers.

2. Payment plus control = ads

Again, according to the ASA Guide:

“If you work with a brand to create content that you’ll be posting on your own channels, it’ll qualify as an ad if the brand: 1. ‘Paid’ you in some way (can be freebies, doesn’t have to be money), and 2. Had some form of editorial ‘control’ over the content, including just final approval.”

The ASA has recommended that labels such as ‘ad’, advert’ and ‘advertisement feature’ should be included in posts of this kind. Essentially, make it as obvious as possible; consider your labels carefully, always include them at the beginning (so that the post can be identified as an ad straight away), and don’t forget to make sure that it is suitable and prominent across all devices and channels.

3. Payment without control = sponsored

So far, so good. But then here is where it gets a little confusing:

“If you’ve been ‘paid’ (either in money or in gifts/freebies), but it isn’t as part of an affiliate arrangement and the brand doesn’t have any ‘control’ of what (or even if) you post, it’s unlikely that the content will count as advertising under the CAP Code.

In that case it’s a little like sponsorship, in the way that events and TV programmes can be sponsored – the sponsor has no ‘control’ over the actual content of what they’re sponsoring, they’re just helping to fund its creation (and paying for an association with that content).”

Sponsorship isn’t actually covered by the CAP code, and the ASA won’t investigate complaints about it. However, it’s still subject to regulations under consumer protection legislation imposed by the CMA, and online influencers still need to disclose if they’ve received any form of product or payment, incentive or loan of a product or service.

However, the likes of labels such as ‘sponsorship’, ‘sponsored content’, ‘spon’, ‘spn’, ‘in association with’ (or simply just mentioning the brand), are considered riskier and the advertising authorities recommend staying well away from these terms, as they may be confusing for consumers.

In fact, the most ambiguous section of the guidelines relates to this statement about control:

“It’s not an ‘either/or’ – there has to be both ‘payment’ and ‘control’ for this type of post to count as an ad under the CAP Code.”

Room for improvement

It seems the guidelines around sponsorship are hazy because existing regulations are themselves vague. It’s a potential loophole and one that could lead to confusion and unnecessary complications for influencers, especially if it’s not covered by the CAP code.

So what counts as ‘control’ anyway?

We contacted the ASA directly to clear a few things up around the issue of ‘control’ and to find out their interpretation of a few common scenarios.

We discovered that if a brand approaches a blogger with potential content and ask if they would be interested in covering it on their site, it counts as control because the website is implicitly mentioned. When payment is discussed, you guessed it - control. And when a brand asks if their content can be added to a blog post, it is again considered control.

However, if information is sent over because the brand thought it would be of interest to the influencer and there is no specification of what they want done with it, it doesn’t count as control. The ASA consider each situation on a case-by-case basis so if in doubt, we recommend getting in contact with them to get the most accurate and up to date ruling.

More clarity is needed

What is unmistakable is that there is a strong case for more clearly defined rules that are not so open to interpretation. Given the nuances involved, we need even more transparent regulation that is easy to follow, with officials and governments working together to provide fixed guidelines. Even though there have been some developments in the area, it’s still not as clear as it could be. And that is a big problem for influencers, brands and consumers. More detailed regulations will protect everyone.

As mentioned earlier, the primary onus is currently on influencers, with the paying brands secondary. However, that doesn’t represent the complexity of the partnership. While influencers should, of course, put the work in to understand and adhere to the rules, the content is the result of a collaboration and the brand’s culpability should not be downplayed.

Additional guidance has been promised

We are expecting further clarification based on the following statement by the ASA:

“We launched our call for evidence into online labelling earlier this year as the first part of a project exploring people’s ability to recognise online ads as ads, including by how they are labelled. We’ll be reporting more on this in the autumn.”

However, as there was no sign of this update, we followed up with them directly to find out when it would be published, and received the following statement:

“The announcement concerning results of our ad labelling project is now likely to be in the new year – apologies for the delay.”

Perhaps they have realised the full scope of the issue and it’s taking longer than originally planned. We look forward to reviewing the developments on the issue and hope it addresses some of the current ambiguity.

A final word on authenticity

The ASA’s guide is a good step forward and shows that the industry as a whole is becoming more widely recognised, respected and regulated. It may just be scratching the tip of the iceberg, but it’s definitely a decent start.

However, the example of Scarlett London demonstrates that clear labelling isn’t the only consideration for influencers. Content creators shouldn’t underestimate their audience.

More thoughtful, authentic campaigns are likely to lead to better results for marketers and influencers, as consumers are becoming more wise and sceptical to how they are being advertised to. And surely increased consumer trust is a good thing for the industry as a whole?

Ultimately, content creators rightly want the freedom to create posts that reflect their style and that ultimately attracted their followers in the first place. They shouldn't sacrifice their authority for a brand or simply defer to them. After all, if a product is shoehorned in, it appears forced and contrived.

As Shahriar Coupal, Director of CAP states:

“The relationship between influencers and their followers relies on trust and authenticity, so transparency is in the interests of all parties.”

Shahriar Coupal

Download the influencer’s guide here, which also features a handy flowchart that summarises the rules on one page.

[It’s worth bearing in mind that these regulations are updated frequently, so if you are an online content creator of any kind working with brands, then you can check the ASA website regularly to stay on top of the best way to declare your content.]