Working with Influencers – An Insider’s Perspective

United Kingdom

On Thursday 3 December, as part of a discussion on influencer marketing, CMS was pleased to host a Q&A with Phil Hughes, Global COO of Gleam Futures Group. Phil gave an insider’s perspective on this exciting and expanding segment of the industry. Among the many topics discussed were:

  • The significance of influencer marketing

  • The legal and regulatory framework of influencer marketing

  • The CMA’s investigation into influencers

  • Key definitions and concepts for influencer marketing

  • How and when influencers need to properly disclose an advert

  • Recent ASA decisions concerning influencers

  • Practical tips when working with influencers

Legal and regulatory framework for influencer marketing

Setting out the key rules applicable to influencer marketing, Susannah Parry, Associate at CMS, discussed the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code).

As UK legislation, the CPRs will continue in force after the Brexit transition period. In particular, the 31 banned practices under the CPRs will continue to be prohibited, including:

  • using editorial content for paid-for promotion of a product without making it clear that it is an advert;

  • falsely claiming or creating the impression that the trader is not acting for purposes relating to their trade or business; and

  • falsely representing oneself as a consumer.

The CAP Codes include requirements that marketing communications must:

  • be obviously identifiable as such;

  • not falsely claim or imply that the marketer is acting as a consumer;

  • make clear the marketer’s commercial intent, if that is not obvious from the context; and

  • not materially mislead or be likely to do so.

How to ensure ads are properly labelled as such – practical tips

Victoria Gaskell, Partner and co-head of the Media group at CMS, set out some practical tips for brands and influencers as follows:

  • If advertisements are not obviously identifiable as such from the context, they must be labelled.

  • Ad labelling must be clear, upfront and prominent.

  • Consumers cannot be expected to do any work to understand that the content is an ad. Consumers must be able to see that the content is potentially a commercial communication before they engage with the content.

  • Ad references or disclosures (e.g. #ad) should not be buried in a sea of hashtags at the end of a post.

  • The labelling must be obvious, immediately noticeable and appropriate for the channel.

  • Just putting #ad at the end of the brand name is unlikely to be sufficiently clear.

  • Disclosing a commercial relationship only on an influencer’s homepage or profile page is not sufficiently clear.

  • The types of labels, that can be use with or without ‘#’, that are acceptable by the ASA and CMA include:

    • Ad

    • Advert

    • Advertising

    • Advertisement

    • Advertisement Feature

  • The types of labels that are not acceptable to the ASA and CMA include:

    • Supported by

    • Funded by

    • In collaboration with / in association with

    • Thanks to [brand] for making this possible

    • Gifted

    • Sponsorship/sponsored

Engaging influencers

Victoria also discussed key tips for brands when contracting with influencers. Among other things, brands should:

  • decide the level of editorial control or approval rights it will have over the content. When considering the extent to which brands wish to control the content of an influencer’s post, they should be mindful of the balance to be struck between ensuring the brand’s messaging is put across and avoiding damaging the authenticity of the marketing content.

  • agree on the engagement details, which can include timing and number of posts, the platform where the posts are to be published, maximum and minimum duration of the posts, payment, and any other services to be provided by the influencer.

  • determine who is responsible for ensuring the posts are compliant with law and that the influencer will abide by any brand social media policies.

  • ensure they can take action swiftly, such as the right to have posts taken down should any issues arise.

  • ensure they can terminate an arrangement with an influencer where an influencer acts in a way that is not line with the brand’s values.

In the wider discussion on practical tips for engaging and working with influencers, Phil also made some key points:

  • The parties should agree as much as possible up front, including what the brand messaging is going to be and how the nature of the content will be disclosed.

  • Brands should not take a homogenous approach to influencers. The contractual conversations, requirements and expectations of the parties should vary depending on the influencer with which the brand wishes to engage.

  • Where appropriate, brands should trust influencers with their targeting and messaging in order to increase effectiveness of brand messaging. Influencers have an authentic and engaged audience with whom they know how to communicate. Brands can instead carry out due diligence on influencers.

Industry insights

Wider industry insights from Phil included:

  • With the emergence of new social media platforms there are more ways for audiences, and therefore consumers, to be reached by brands. This has led to more community, less algorithmically driven platforms, such as TikTok, that give audiences more control over the content they see. Polished, curated content is giving way to something more authentic.

  • There is a race between the platforms which may create marketing opportunities. For example, Instagram’s “Reels” was influenced by the emergence of TikTok.

  • The emergence of new platforms has created opportunities for brands as the platforms are competing to be more “shoppable”.

  • There is an emergence of cause-driven talent which is reflective of Gen-Z’s concerns and interests.

  • The development of competitive gaming, combined with technological advances, is leading more brands to invest in the gaming industry.

Comment

Influencer marketing continues to be a developing market and an area of focus for enforcement. Regulators such as the ASA and the CMA target the influencers and the advertiser for enforcement, but in a carefully drafted influencer agreement the talent agency will also be liable. Ultimately influencer marketing requires a collective effort from all parties involved to ensure compliance. It is therefore important for all parties to stay across developments in this ever-changing market.

If you’d like to catch up with the discussion, including hearing Phil’s comments in full, the webcast can be viewed here: https://bit.ly/3dFQD3U.

Co-authored by Stuart Helmer and Aysha Kaplankiran.