Social media advertising is the new normal, but is your brand prepared?
I hate to admit it, but my favourite shoes, my travel buggy and my dining chairs are all items that I first saw on Instagram. A method of advertising that once provoked little more than an eye roll from me, has now physically manifested itself in my life, reminded me that imaginative style and original ideas are not my USP. But am I the only one to have underestimated this impact of this shift in marketing practices? Is the regulatory framework for advertising insta-ready?
Advertising through social media is one of the most innovative changes in recent years to the way brands put their products in front of consumers. For those social media celebrities or “influencers” who have corralled the tens of thousands of followers required to attract big brand names, simply snapping a selfie with a free product and telling your public how wonderful it is, may not be as easy a “job” as it first appears. In the past year we’ve seen the Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA) respond to these changes in practice by publishing an Influencer’s Guide, setting out rules that influencers must follow to ensure that it is clear to consumers that there is a commercial relationship between the influencer and the brand, in addition to a guide for social media endorsements.
The CMA has already instructed certain influencers to label their ads more clearly following the publication of this Guide, and this month, the ASA opened an investigation into the advertising practices of Mrs Hinch, one of the UK’s most prolific influencers, following three complaints in April over the way she labelled posts advertising products. The outcome of this investigation will be a significant indication of how the ASA intends to deal with influencers in contravention of the rules.
These obligations aren’t placed solely on individual influencers though; brands themselves can be sanctioned if their ads don’t comply with the regulations. In addition to their obligations under consumer law, which require both brands and individuals to disclose the nature of sponsored content, brands can fall within the scope of ASA investigations if the influencers they partner up with don’t follow the guidelines.
Communication with influencers is key where brands seek to engage them - sliding into their DMs won’t cut it. Brands using influencers to market their products should treat these relationships just as they would TV or billboard advertising. They should ensure that those advertising on their behalf are operating within the law, and that the claims made about the product are accurate. Marketing teams should be trained on the latest guidance and made aware of the laws in this area, and regularly monitor posts made by those in partnership with their brand. Prudent brands will ensure that adequate contracts are in place with their influencers that cover these requirements, and offer maximum protection for the brand where any influencer flouts the guidelines. The investigation into Mrs Hinch will be one of the first opportunities for the ASA to show whether it will bring a brand within the scope of an investigation into an influencer’s practices.
The ASA is showing no signs of holding back when it comes to online advertising generally, and neither are consumers. Last year, complaints over online advertising outnumbered television ad complaints by almost 3:1. With this in mind, the ASA and the Committees of Advertising Practice have launched “More Impact Online”, a five year strategy focused on monitoring all kinds of online advertising.
It seems then, that the regulatory framework is not only ready, but has taken its own advice in being crystal clear as to what’s required. The efforts by the authorities to get ahead of the curve when it comes to regulating online ads is influencer-worthy in itself. With sanctions for non-compliance including fines and even prison time, the outcome of this latest investigation will be more than just an influence on Mrs Hinch et al.
15th April 2020
Online copyright infringement can often seem like a bit of a minefield.
24th March 2020
The UK government’s lockdown will have impacts on parties to IP licences and franchise agreements.
17th December 2019
Is the fight against the pirates being won?