By: Claire Sng

I had the rare opportunity last week to put some questions directly to Guy Parker, the ASA’s Chief Executive, during a Q&A session at an industry conference on Advertising and Marketing Law.

I asked two questions relating to influencers and transparency of social media posts.

This clearly remains a critical issue for brands. Not only does the user of influencers continue to grow, but where an influencer gets it wrong and there is a negative ASA adjudication against them, the relevant brand will also be named and shamed notwithstanding any contractual attribution of liability.

First Question

I asked Guy to comment on the ASA’s view as to the state of influencer marketing since the publication of the ASA’s guidance in September last year and whether, in his view, things are getting better and what the ASA is doing about it.

As you might expect, his view was that there is still a lot more work to do, especially with reality TV stars. Of particular note, was his comment that up until now the ASA has “focused mainly on educating in the last few years”, but they are “now at the point of thinking they will start enforcing”.

Brands and influencers should take note that we could well see a greater crack down on unclear social media posts by the ASA. In his words “People should not have to play detective and deduce the status of content”. (This assessment includes not only the label used, but also the position of the label i.e. is it buried, as well as consideration of what platform tools have been used (if any)).

In addition, the ASA has been undertaking an investigation into ad labels and how they are understood by the public. Guy mentioned that the ASA is soon to publish its report on its findings.

Second Question

I noted that the guidance is a bit thin in relation to the scenario where there is no “control” by the brand over the content of a social media post (i.e. including final approval but, also, for example, directing the influencer to use particular hash tags), but there is “payment” (i.e. including, for example, free product/service giveaways, benefits etc.) i.e. a post which is not an “ad” but which still needs to comply with Consumer Protection rules such as the Consumer Protection from Unfair Trading Regulations 2008.

I noted that the CMA guidance (as repeated in the ASA guidance), suggests Advertisement Feature and Advertisement Promotion in this scenario, but which arguably may not accurately capture a situation where a brand simply gives product or services away for free.

Guy referenced the view of the House of Lords Select Committee in its UK Advertising in a Digital Age Report that the ASA should come up with mandatory labels. He suggested that the ASA is unlikely to go down this route.

He did not offer any acceptable alternatives to these labels. (He noted, for example, the findings of the soon to be published ASA report that #gifted had been understood to mean that an influencer is gifted (in the sense of talented) as opposed to referring to gifted product or services, so this label seems unlikely to go far enough on its own.)

Brands should keep their eyes peeled for the above referenced ASA report, which will hopefully provide some further useful clarifications.

Final note

In addition to the above points around labelling, another key point that came out of the Q&A, is that brands and influencers should not focus to such an extent on the labels that they lose sight of the need to make sure posts themselves do not breach the rules.