Influencer marketing, sponsored posts and social media do you know the law? Brand protection solicitor Jessica O’Riordan explains the regulations.

Social media is a prevalent part of day to day life. The scope for people with large followings – considered “influencers” – to commercialise the activity has grown.  Many companies engage with influencers to advertise new products and services because they reach such a large audience and add an element of kudos.

This type of advertising has gone, for the most part, under the radar.

The Advertising Standards Agency (ASA) do, however, recognise it and recently the regulation of sponsored advertising campaigns has been in the news.

In addition to the ASA regulating this type of advertising, the Competition and Markets Authority (CMA) (the UK’s “competition watchdog” which monitors and promotes completion within markets) has been collating names of celebrities who are falling short of the regulations.

There has been an increase in the public shaming of celebrities using social media to promote third party products without indicating their affiliation with the company. Such acts are considered by the ASA and CMA to be highly misleading to the consumer and contrary to advertising regulations.

What obligations are imposed under the regulations?

When content is being promoted, there must be complete clarity that it is being paid for by a company or brand. Accounts are required to make it explicitly clear that the post has either been sponsored or is an advert. This can be done in a number of ways none of which are particularly onerous.

If an influencer is being paid to promote a product or service on any social media platform, they (and the company paying them for the advert) will need to ensure they comply with the regulations.

When is a post being sponsored?

This might seem like an obvious question, but it can often be overlooked.

When a company approaches an influencer to promote a product, offers them some form of payment but does not exercise any creative control over the post, this will be considered as being “sponsored”.

In contrast, if the company requests a certain message or claim to be incorporated in to the post, this is considered to be an advertisement.

How to comply with the regulations

There are a few ways to make sure that businesses are not caught out by the ASA regulation.  Businesses need to prove they are being completely transparent about their content and relationships with third parties. The Committee of Advertising Practice (CAP) has issued guidance in this area.

The general advice is to ensure that whoever is viewing the post, article, blog, vlog or tweet is immediately aware that it is an advert before they click it or read it. This can be done in a number of different ways; however the most effective is to label it as such, clearly and concisely.

The most common way of doing this would be to include it in the description of the post; starting it with something along the lines of “Ad” or “Advert” as an instant identifier. There are other readily accepted methods of identifying a sponsored post, such as including a hashtag “#spon”, “#sponsored” or “#ad”.

What happens to the non-compliers?

Anyone who is caught not complying with these regulations could be ‘outed’, as many celebrities have already been, which can be damaging to business and brand reputation.

It may be the case that repeat offenders may incur a heavier wrath from the ASA, which could lead to influencer accounts being deleted or suspended; but there have yet to be any cases of this happening.

If you would like to discuss the use of sponsorship or advertising on social media in relation to your business, please do not hesitate to contact Jessica O’Riordan who is a solicitor in our IP/IT team on 01392 210700 or ip.it@stephens-scown.co.uk.