How the law affects influencer marketing

by | May 1, 2019

The Competition & Markets Authority (CMA) published a guide for influencers – and those working with them – in January this year. As a result of that action, 16 influencers – including Alexa Chung and Zoe Sugg – agreed to change the way they label their posts.

Since then, however, their conversations with stakeholders have shown that there are still questions about what this means for the industry, so they have blogged again in more detail to ensure everyone gets the advice they need to comply and to protect consumers from being misled.  Here, the CMA unpack how the law affects influencer marketing, and address some of the main questions they’ve been asked.

What the law says

“We’ve received enquiries about the ‘new regulations’ or the ‘recent changes’ in this area of consumer law. There has not been any change to the requirements on influencers, but our guide explains what compliance with the law looks like in practical terms.

Consumer protection law relates to influencer marketing and is designed to protect audiences from being misled by not getting the full picture. It requires anyone endorsing a product or service on social media to disclose clearly and prominently when they have received any payment, benefit (such as a free gift) or any other incentive.

Also, influencers should not give the impression that they are genuine customers when they are not. For example, if you give the impression that you have personally purchased and/or personally used something when you have not, you could be falling foul of the law.

The same principles apply to social media as any other form of media and advertising: you need to be open, upfront and honest with audiences”.

What this means for influencers

“There is usually more than one way to clearly explain a relationship with a brand or business, and/or any payment or incentives received for an endorsement.There are no set ways of labelling endorsements. Each social media platform is different and constantly changing, and individual influencers have diverse creative styles.

What’s important is that any relevant disclosures are clear, prominent and upfront. This means that your viewers or followers must see and immediately understand the disclosure before they start to view or read your post. This applies regardless of the platform you post on or the device that your viewers or followers may use.

Rather than looking for specific wording or tags that can be used to ‘tick off’ legal requirements, we recommend that you review your content from your audience’s point of view before posting”.

“Ask yourself:

  • will my followers know that I’ve received any type of incentive or reward in connection with the product or service mentioned in my post (even if it was a few months ago)?
  • have I disclosed this information or relationship to them in a way that is clear, prominent and upfront?

If audiences could assume, for example, that you chose to buy and pay for something you actually received for free, then you need to make this clear and prominent.

If your followers could assume that you are referring to a product or service in your post simply because you personally like it and use it – when actually you are receiving some commission or reward – you should make this clear and prominent in your post.

Thinking in this way will help you understand what disclosures need to be included in your posts and remain on the right side of the law.

For more information about what and how you should disclose, take a look at our guide for influencers. We can’t give examples for every circumstance, but there are examples of practices that we don’t think go far enough.

Everyone that has been involved in the publication of a post is responsible, from the brand through any agencies and advisors, to the influencer themselves – so make sure you understand what is required”.

ASA and CMA roles

“While we work closely with the Advertising Standards Authority (ASA), our roles are different. At the CMA, we are interested in how markets work as a whole, and can prioritise action to protect consumers, for example against practises that may mislead large numbers of people.

The ASA is the UK’s independent advertising regulator. They respond to complaints from consumers and businesses and take action to ban ads across UK media which are misleading, harmful, offensive or irresponsible, in breach of the Codes written by their sister organisation the Committees of Advertising Practice (CAP).

Whereas ASA are focussed on adverts, the consumer protection law we enforce doesn’t distinguish between an advert – where the brand controls the outcome – and an editorial review, where the influencer has taken payment but created the content independently.

We published a joint guide with the ASA and CAP, which gives more information about our roles and further practical advice for influencers when using social media.

If you have queries about how this relates to your specific circumstances or posts, you should seek independent legal advice.  For adverts only, CAP’s copy advice team can offer free, bespoke advice”.

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