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#undertheinfluence – the top five legal pitfalls for online ‘influencers’

Posted: 05/11/2018


Through hard work and long hours you’ve amassed an enviable following online. Be it for streaming competitive games on Twitch, a vegan YouTube channel with a healthy amount of subscribers, or you’re #doingitforthegram with Instagram fashion posts. If this describes you, you may need to double-check your content to make sure you don’t come into the crosshairs of advertising regulators.

Research has shown that many of us are increasingly turning away from traditional adverts with obvious sales messages. Nowhere is this more clearly shown than in recent estimates that 12.2 million people in the UK will use ad blocker software at least monthly in 2018.[1]

As a result, advertisers and marketers are consciously looking for other ways to market their brands by working ‘influencers’ as an alternative to traditional advertising.

Get this right and you could enjoy a lucrative relationship with a brand owner which can both provide new income and enhance your own brand.

Get it wrong and risk facing legal action from the Advertising Standards Authority (ASA) or Competition and Marketing Authority (CMA) and, arguably most importantly, losing the trust and respect of your followers.

Make sure you know if your content is an #ad

Firstly you’ll need to know if any content you upload (regardless of what medium you use) complies with any legal requirements for advertisements.

The ASA has recently published guidance specifically targeted towards ‘influencers’. This can be accessed here.

In short, if you work with a brand to create content that you’ll be posting to your own followers, the post will be an advert if:

  • the brand ‘paid’ you in some way; and
  • the brand had some form of editorial ‘control’ over the content, including just final approval.
Whether or not a brand has ‘control’ over a post will usually depend on any agreement you have with the brand. But as a general rule, if you weren’t completely free to do and say what you wanted, there could be an element of ‘control’. 
 
Being ‘paid’ is not restricted to monetary transactions. Any gifts, trips, hotel stays or flights given for free can be payment.
 
If you satisfy both the ‘control’ and ‘paid’ elements, you will satisfy the ASA’s requirement for an advert, and will need to comply with its code of conduct: the CAP Code.
 
If you are ‘paid’ but there is no ‘control’, the CMA still may get involved under consumer legislation such as the Consumer Protection from Unfair Trading Regulations 2008.
 

Make sure your #ad is clearly labelled!

The CAP Code states that all advertisements must be ‘obviously identifiable as such’. This is the most common pitfall facing non-traditional advertised content.

You must make advertised content immediately clear to the average consumer on viewing the post. Adding #ad, #advert or #sponsored in the description is one way, provided it is not hidden in a cluster of hashtags. The CMA has stated that using #spon or #gifted is simply not clear enough.

Using a hashtag is not the only way to make sponsored or paid for content immediately obvious. Much will depend on your chosen medium and how you communicate with your followers. But how you approach the subject of making an ‘informed’ consumer aware of advertised content remains a vital editorial decision.

If you are concerned that you might not have satisfied your legal obligations to your followers, you should seek legal advice.

Don’t get on the wrong side of the CMA or ASA

The ASA can take action if it receives just one complaint from a consumer. If it finds content that it decides should be labelled as an advert but isn’t, it can publish a ruling on its ‘wall of shame’ and request the advert be removed. (It goes without saying that if your sponsor paid you for a specific post, which is then forcibly removed, this is unlikely to go down well!)

If the CMA gets involved, it has stronger powers to fine and even imprison those who repeatedly breach their obligations to consumers.
 
This is no idle threat. The ASA is reportedly spending more time investigating influencer activity than any other adverts[2]. Made In Chelsea star Louise Thompson[3] and Geordie Shore star Marnie Simpson[4] have both fallen victim to the pitfalls common to influencers.
 

Beware of bots and never buy followers

Chances are that if you have a significant online following, you will have come across sites offering (for a fee) to boost comments on your posts or increase your following count.

Whilst it can be a tempting proposition, this type of ‘influencer fraud’ can have serious commercial ramifications. The attitude of brand owners to this type of behavior is negative.  As described by Keith Weed, chief marketing officer at Unilever, ‘we believe influencers are an important way to reach consumers and grow our brands… their power comes from a deep, authentic and direct communication with people, but certain practices like buying followers can easily undermine these relationships’.[5] 
 
Recently the CMA has indicated publicly that it would not rule out in the future taking investigative action into audience fakery.[6]  
 
Additionally, follower count is undeniably one of the central factors in how brand owners select their influencers. Brand owners are therefore increasingly likely to want to seek protection against influencers with artificially inflated follower counts.  So by knowingly (or unknowingly) deceiving your commercial partners, you could be placing yourself in breach of your contractual arrangements. 
 
Seek advice on restricted goods 

Making your adverts transparent, not misleading and keeping your profile free of automated bots is just the first step.

If any of your content includes the promotion of age restricted products such as gambling or alcohol; food or supplements; or if you are running your own prize giveaways, there are many other additional requirements that you should seek advice on.

Failure to do so may result in misleading your audience and breaching consumer protections, leaving you vulnerable to fines and damaging publicity.


[2] https://www.prweek.com/article/1494410/consumer-watchdog-were-open-investigating-false-claims-influencers-followers

[3] https://www.thedrum.com/news/2017/10/25/geordie-shores-marnie-simpson-falls-foul-first-asa-snapchat-warning

[4] https://www.thedrum.com/news/2017/04/05/instagram-blogger-s-sponsored-post-flat-tummy-tea-banned-failing-use-ad

[5] https://www.campaignlive.co.uk/article/unilever-pledges-not-work-follower-buying-influencers-calls-industry-follow-suit/1485146

[6] https://www.prweek.com/article/1494410/consumer-watchdog-were-open-investigating-false-claims-influencers-followers


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