ASA upholds complaint against an influencer’s luxury Instagram giveaway in support of her own personal brand 

The ASA has upheld two complaints made against influencer Molly-Mae Hague, around claims that her Instagram giveaway, worth a total of £8,000, was not awarded in accordance with the laws of chance and the promotion was administered unfairly.

This ruling is notable in that the complaint related to Ms Hague’s promotion of her own personal brand, rather than to paid-for marketing communications on behalf of a third-party brand. As such, this ruling is a further acknowledgment of the commercial reality that influencer marketing is a commercial undertaking in its own right.

The giveaway

The giveaway, posted on Molly-Mae Hague’s Instagram page in September 2020, featured an image of Ms Hague standing behind a range of luxury goods, including handbags, electrical devices, and beauty products.

The caption of the post stated “GIVEAWAY!!! 1MILLION YOUTUBE SUBSCRIBERS [heart emoji] I can’t put into words what this means to me. Since the age of 16 I’ve had this dream and goal in my mind and today we did it….my mind is blown. Without you guys this dream would never have become a reality, so it’s only right that I give back. THIS IS MY CRAZY GIVEAWAY!!!! The thought of one of you receiving all of these things makes me so happy, I can’t wait to see who wins! To ENTER my giveaway and be in with the chance of winning £8000 worth of gifts (NO SPONSORS ALL FROM ME!) then follow the steps below: like this post & tag a friend, subscribe to my YouTube, make sure you’re following @mollymaehague and @filterbymollymae, share this post to your story for a bonus entry. You must complete all the above points for your chance to win. The more you tag the more chance you have of winning! You will win ALL of this Louis Vuitton luggage, LOTS of Apple goodies, a years supply of @filterbymollymae & a full BeautyWorks transformation. IT’S THAT SIMPLE *ends 20.09.20 at midnight* *This giveaway is not a paid partnership or in any way an affiliation of any brands that are included. Everything included has been purchased by me for this giveaway for you all to enjoy. The winner will be picked at random.”

The complaints

Twelve complainants, who believed that not all entrants to the competition were included in the ‘final draw’, alleged they did not have an equal chance of winning the giveaway, and challenged whether:

1. the prize was awarded in accordance with the laws of chance; and
2. the promotion was administered fairly.

Ms Hague’s response

Ms Hague stated that the post did not provide an inducement to engage with a brand or a product and therefore believed that the post would not fall within the scope of the CAP Code. Ms Hague stated that the high number of entrants prohibited the use of computer software to select a winner. Instead she had instructed a member of her management team, in the presence of and under the supervision of an independent person, to manually select out of a hat a random group of participants who could be seen to be following her profiles. Each of the 100 participants shortlisted was checked to verify that they had followed all profiles and had completed each step of the competition requirements – if they hadn’t, they were replaced with a different individual. Each of the 100 selected entries was then assigned a number and the independent person used a Google number picker which chose the winner. Ms Hague also said that the response to the promotion was overwhelming and unexpected and she believed she had dealt with it in the best possible way considering how many people had entered.

The ASA’s ruling

The ASA upheld both complaints.

It noted that the characteristics of the post, including the requirement to follow her tanning brand’s Instagram account, Filter by Molly Mae, meant that the giveaway concerned a promotion in the form of a prize draw, and therefore fell under the scope of the CAP Code.

Ms Hague had over five million followers on her Instagram account, and the ASA believed that, with a prize draw worth £8,000, a high level of response should have been anticipated. However, Ms Hague provided no evidence on how the likely response to the promotion had been estimated or how she had planned to administer it, including, for example, how entries across stories and posts were to be collated and administered, particularly as participants could enter more than once.

The ASA understood that there was computer software available which could have made a random selection from all of the respondents to the post, but that Ms Hague had chosen not to use this. Ms Hague also did not provide any evidence that the initial selection of individuals was at random.

The ASA understood from Ms Hague’s response that the full competition requirements had only been applied to the selected group of 100 entries. However, an Instagram Story from Ms Hague’s account said that a smaller shortlisted group of 25 was entered into a computer programme to determine the winner, and that all those selected had entered the giveaway more than once. The ASA was concerned about the lack of consistency in the information provided, and in any event had not seen any evidence that the shortlisted participants were chosen randomly. Nor did Ms Hague provide any evidence that the eventual prize winner was selected randomly using computer software, in accordance with the laws of chance and by or under the supervision of an independent person.

The ASA therefore concluded that the promotion was not administered fairly and therefore breached the CAP Code rules 8.1 and 8.2 (Sales Promotions), 8.10 (Availability), 8.14 (Administration) and 8.24 (Prize promotions).

Comment

There are many ASA rulings against influencers for failing to ensure that paid-for posts on social media are obviously identifiable as advertising, including against Ms Hague herself, for not declaring that a post was an advertisement for online clothing retailer Pretty Little Thing in January 2020. However, we believe that this is the first time an influencer has had an ASA complaint upheld against them for the promotion of their own personal brand, with the ASA rejecting Ms Hague’s argument that, because she was not acting for a third party brand or product, her promotion was not in the scope of the CAP Code. As such, this ruling implicitly recognises the commercial reality that, despite trading on what is often positioned as an informal, personal connection with their followers, many influencers are valuable commercial brands in their own right. Influencers should be aware that their own communications with their followers now have the potential to fall within the scope of the CAP Codes if they are in the nature of advertising.

Influencers would also do well to reflect that it is barely two years since the Competition and Markets Authority obtained undertakings from a number of high-profile influencers to comply with the CAP Codes. The CMA will no doubt be keeping an eye on this market and may intervene again.

Further, although not addressed in the ASA’s ruling, Ms Hague’s promotion may also have breached data protection law. The Privacy and Electronic Communications Regulations (EC Directive) Regulations 2003, which require marketers to obtain consent before sending electronic marketing communications, apply to people sending messages themselves and to those “instigating” someone else to send it. As there is no way of knowing whether an individual’s friends have given their consent to being tagged, promotional mechanics that encourage respondents to “tag a friend” are inherently risky.

The treatment of influencers as businesses in their own right further heightens the tension between the impression influencer marketing seeks to create – of a genuine “grass roots” endorsement from an influential person – and the reality that this is paid-for advertising. Brand owners working with influencers may wish to consider obtaining undertakings from them that they will not engage in overt promotion of their personal brands alongside their brand ambassador, and to review influencers’ historic activity to ensure that it fits with their objectives.

Co-authored by Stuart Helmer, Susannah Parry and Hannah Torpey.