Are you a social media influencer? Here’s what you need to know! - Kuits Solicitors Manchester
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Are you a social media influencer? Here’s what you need to know!

Are you a social media influencer? Here’s what you need to know!

23rd December 2020 - Published by Kuits Intellectual Property team

In this day and age, with more and more consumers turning to their favourite Instagram or YouTube stars for advice and recommendations, product endorsement by social media influencers is becoming increasingly prevalent in the world of marketing. Many of our habits, including the way we shop, have also been affected by the recent lockdowns brought on by the Covid-19 pandemic. Therefore, with the demand for online shopping being now greater than ever, it is not surprising that many brands decide to team up with influencers who can market their products to their established social media audience.

Instagram, Twitter, YouTube and TikTok have become the most popular platforms where brands seek to have their products advertised or endorsed by influencers, usually, in exchange for remuneration or a gifted service or product.

Although social media advertising seems relatively straightforward, there are a number of pitfalls to be aware of. It not uncommon to see decisions by the Advertising Standards Authority (ASA) removing content where the Advertising Code has not been complied with. The ASA ruling will affect both the influencer, and will also potentially affect the business whose goods or services were being promoted.

What are the rules?

The Advertising Code requires that marketing communications are “obviously identifiable” and that “marketing communications must not materially mislead”. Very often influencers may be in breach of the Advertising Code, because they did not use the correct terms such as  “ad”, “advert” or “advertising”.  Often influencers use the terms “supported by”, “gifted” or “sponsored”; but the ASA does not consider these terms as sufficiently clear.

Emily Canham, a TikTok star, recently fell foul of this. The ASA found that Canham’s video promoting GHD hair straighteners should have been marked with an obvious identifier such as “#ad”. Although Canham was not paid for this particular video, the TikTok video was found to be an advert, because the promotional code offered by the star was linked to her contract with Jemella, trading as GHD.

In September 2019, Molly-Mae Hague, a Love Island contestant also had content removed for similar reasons. The complaint concerned a post featuring the influencer wearing a coat from Pretty Little Thing (PLT) for whom Hague was a brand ambassador. The ASA held that even though PLT did not approve this post, due to the commercial relationship between PLT and Hague, and because the post featured a PLT product which was also tagged to their Instagram account, the post fell within the remit of the Advertising Code and therefore should have included a clear “#ad”.

Even more stringent rules apply to YouTube videos. Here, vloggers not only need to disclose that their content constitutes an advertisement but they also need to ensure that the labelling is timely. The Code requires that viewers must be aware they are selecting to view an advert even before they engage with the content. Therefore mentioning that a vlog is an advert at the end of or half way through the video is not sufficient to comply with the rules.

Influencers should also consider the market at which the promotional content is aimed. This applies, for instance, when an advert is targeted at younger viewers as they are considered to be more vulnerable. Adverts for particular product types such as foods, alcohol or gambling also need to comply with a set of additional, specific rules.

Why is it important to follow the rules?

If a complaint about an influencer’s post or video is made either by the public or someone in the industry, it will be handled by the ASA. If the advertisement is found to have broken the rules the advert must be changed or withdrawn. The ASA will also publish on its website,  its final ruling including the influencer’s name and the business with which it had an arrangement.

Therefore, even though an influencer will not be liable for a fine, breaking the rules is likely to affect their reputation as well as the reputation of the brand with whom they are working; possibly leading to fewer collaborations in the future.

The main take away from this is that social media influencers must be honest and upfront when they are advertising or have been paid to endorse a product. Their marketing communications must be clearly labelled so that viewers are left with no doubts.

Get in touch with an Intellectual Property solicitor in Manchester.

If you are looking for advice in relation to social media advertising, please contact our Humna Nadim in the Kuits Intellectual Property team on 0161 838 8163 or at humnanadim@kuits.com

 

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