The Influencer Market – What to do if the ASA complains?

The concept of an “influencer” is a broad one. It doesn’t matter what you label your influencer – the rules apply to anyone posting content online, be that brand ambassadors, paid partners, or “influencers”.

The Advertising Standards Authority (ASA) and Competition and Markets Authority (CMA) are the primary regulators in this area, and they take enforcement seriously, calling out influencers and brands that aren’t playing by the rules.

In September 2020, the ASA undertook a monitoring exercise to review influencer Instagram accounts and found that only 35% of advertising stories were compliant, prompting them to contact the influencers and brands to put them on notice.

So, what are the rules? In short, marketing communications must not materially mislead or be likely to do so. Any post that is paid for by or controlled by a third party is deemed to be an advert and must be clearly labelled as such.

Payment can include the provision of gifts or discount codes as well as straightforward monetary payment for content. Control can mean control over the content, timing of when it is posted, or just having a right to review content (even if not exercised).

If you are paying for content or exercising control over influencer content, your influencer should be using hashtags #ad or #advert in their post. Other hashtags or labels such as #sponsored, #adgifted or “thanks to X for making this possible” are not permissible as these could be open to varied interpretation.

The influencer needs to ensure that placement of their hashtag #ad is clearly visible upfront and should not be in a small font, obscured by the platform architecture or otherwise difficult to spot. They should not rely on bios or past posts to communicate to consumers that they are connected to a product.

Just as some influencers fail to disclose that their content is promotional or paid, for the opposite problem is also becoming true. Instead of avoiding using hashtag #ad, some social media users are using the hashtag to pretend that their content is sponsored when it isn’t. They do this to try to raise their profile and ultimately to encourage brands to engage them as a paid influencer. If someone misrepresents a connection with your brand which causes you damage, you may be able to take action against them for passing off.

Influencer fraud is an increasing trend. This is where influencers buy “likes”, engage the support of automated bots, or join coerced engagement groups to increase their following. While none of these things is illegal in itself, if a consumer is induced into buying something because of an untrue statement made by the influencer, possibly in the form of the size of their following, the influencer could be liable for misrepresentation.

Brands don’t want to be seen to be working with influencers who are getting it wrong: they should be doing their homework before engaging an influencer, and continue to work with the influencer to ensure that content is always disclosed using hashtag #ad.