Losing friends while influencing people: ASA warns Insta influencers over compliance

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Following a series of upheld adjudications in recent months in relation to influencer advertising posts that were not obviously identifiable as advertising, the ASA has published the results of a three-week Instagram influencer monitoring exercise. The research revealed what the ASA called “a disappointing overall rate of compliance with the rules on making it sufficiently clear when they were being paid to promote a product or service”. The ASA has now written to all of the influencers it monitored, requesting assurances of future compliance.

The ASA also wrote to the main brands who had partnered with the non-compliant influencers, pointedly remarking that brands are held equally responsible for failing to adequately disclose advertising content.

The ASA will undertake further monitoring to ensure that influencers comply with their obligations, and says that that sanctions will follow if they do not.

The research revealed shortcomings in five main areas:

  1. Inconsistent disclosure across Stories - when a piece of ad content spans a number of consecutive Stories, unless it’s absolutely clear that this is part of the same posting, each Story must be disclosed as an ad.
  2. Inconsistent disclosure across Stories, IGTV, Reels, posts – sometimes a post was accurately disclosed as an ad but a corresponding Story was not.
  3. Visibility of ad labels – where Stories were labelled as ads, labels were often in a small font, obscured by platform architecture, in a similar colour to the background or otherwise difficult to spot.
  4. Affiliate content is still an ad – #affiliate or #aff appeared with no additional upfront disclosure.
  5. Own-brand ads – influencers should not rely on bios or past posts to make it clear to consumers that they are connected to a product.

Issues 1 to 4 relate to what should be the simple matter of labelling advertising posts. The rules require that advertising content be “obviously identifiable”. Over a series of upheld adjudications and published guidance, the ASA has made some key principles clear:

  • Only #ad and similar variants (eg #advert, #advertisement etc) can be relied on as good disclosure. Other forms of disclosure, such as “Brand Ambassador”, “sponsored”, “gifted”, “in association with”, “made possible by”, or, here, “affiliate”, are risky.
  • The disclosure must be clear and legible, not buried in a string of other hashtags or obscured by other images.
  • The reader should not have to do the “detective work” of clicking through to other pages or posts to find the disclosure.

Issue 5 is relatively novel, and relates to the promotion of influencers’ own brands rather than paid-for promotions for third parties. It follows an upheld complaint against Lord Alan Sugar for a Tweet promoting a company in which he invested following a series of “The Apprentice”. More recently, the ASA ruled against Molly-Mae Hague, an established influencer, for a prize draw that appeared to be intended to promote her own personal brand, without a product being involved at all, in a decision that reflected the commercial reality that an influencer’s public profile is a brand in its own right (for more information, see ASA upholds complaint against an influencers luxury Instagram giveaway (cms-lawnow.com)).

The Competition and Markets Authority investigated influencer marketing in 2018-2019, and obtained legally binding undertakings from a number of prominent influencers. Despite that, complaints and upheld adjudications against influencers have been increasing in recent months. Earlier this year we noted this rising tide and predicted that further regulator action was likely (see ASA upholds another complaint against an influencer social media ad).

Brand owners should act now to ensure they are not among those named and shamed by the ASA. A holistic approach covering due diligence, careful contract drafting, a robust approval process and proper monitoring can avoid almost all of these problems.