By: Penny Birch, Katrina Hammon, Prashant Kumar
The Advertising Standards Authority (ASA) has released a guidance note (Note) to clarify their expectations around influencer advertising.  Its purpose is to benefit consumers with increased certainty and transparency when advertisers use influencers to promote their products or services.

The Note will apply to all advertisement content posted from 14 September 2020 but is not binding on the ASA’s decision making boards – it is intended to help advertisers and influencers comply with the Advertising Standards Code which fully came into effect on 1 February 2019 (Code).

Genesis – ASA Complaints Against Simone Anderson

The decision to issue the Note was largely a result of the Advertising Standards Complaints Board’s (Board) decision on 23 June 2020 to uphold four complaints to the ASA about influencer Simone Anderson’s Instagram posts.  The Board found that Anderson’s posts were advertisements, but that the failure to make this clear had the potential to mislead audiences as to the relationship between the advertiser and Anderson.  This was the Board’s first decision dealing with substantive issues about influencer advertising, resulting in the Board requesting the ASA to publish further guidance.

Who is an influencer?

The Note defines an influencer generally as someone who has influence over the choice, opinion or behaviour of their audience (regardless of size), and produces organic and advertisement content that they generate income from.  Though the first limb of the definition appears quite broad and would encompass a majority of social media users, the key element is generating income.

The Note explains that influencers can receive payment in many forms – most commonly money, free or “gifted” products or services, credit, event tickets, travel and product loans. 

Ensuring Advertisements Comply with the Code

Advertisers and influencers must ensure their advertisements comply with the Code.  The Code defines advertisement as “any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence the choice, opinion or behaviour of those to whom it is addressed.”
 
Rule 2(a) of the Code states that “Advertisements must be identified as such”.  Emphasising this rule, the Note states that influencers must make it obvious to their audience (consumers) that “content is an ad at their first interaction with it”.  This is a high standard and influencers may need to take particular steps to identify their advertisement content appropriately.

Consumers may naturally know that they are seeing advertisements, such as when they engage with an advertiser’s platform.  Influencers may use a platform’s tools to identify their posts as advertisements.  In these cases, so long as it is clear, the Note says that there is no additional requirement to identify advertisements.  However, influencers should label all advertisement content with “Ad”, “Advert” or “Advertisement” (with or without hashtags) if there is any doubt about it being an advertisement.   The label must be prominent – clear and large enough to be noticed easily.  Influencers may also choose to use other labels in addition to, but not instead of, those labels.

For clarity, influencers are required to identify content relating to free or gifted products or services as advertisements, regardless of whether the advertiser requires the influencer to post, or has any control over, the content.

All parties to an advertisement are responsible for its compliance with the Code and the Note.  In effect, this imposes an obligation on advertisers to ensure their advertisement by the influencer is compliant.  We recommend a written contract to set out the parties’ obligations and expectations, this will reduce the risk of unintentional brand and reputation damage.

If you are an influencer, or use influencers to advertise, get in touch for some expert advice.
 
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