Social Media Law: When to use #Ad in influencer marketing

Social media has made it significantly easier for organisations to leverage high-profile individuals to promote their products, services and brands online, delivering a modern (and potentially lucrative) form of product placement. Social media ‘influencer marketing’ or ‘celebrity endorsements’ like this has become big business!

The opportunity to reach a specific target audience through a social media influencer or brand ambassador can be very effective but can fall under the legal regulations of digital advertising. As a result, organisations are being exposed to a new area of risk.

In a recent webinar with legal expert Steve Kuncewicz, we explored some of the key areas of social media law that organisations need to be aware of when running influencer marketing campaigns (you can watch to the full webinar here).

Consider this – how can an organisation guarantee their brand ambassadors and influencers are compliant with consumer protection regulations? Companies need to ensure that they are not falsely claiming or creating the impression that the business is not acting for the purposes relating to his or her trade, business, craft or profession; or perhaps more importantly ‘falsely representing oneself as a consumer’.

Phrases like brand ambassador, advocate, influencers, sponsored content and brand fans are commonly used under the same umbrella by marketing professionals. However, with respect to advertising law there are distinct differences.

Social Influencer Compliance – When to use #Ad?

In order to avoid a breach of the Committee of Advertising Practice (CAP) code, organisations need to make it clear when content is marketing communication; this includes content posted by an influencer or a brand ambassador. An easy way to achieve this is to include an identifier #Ad to avoid getting flagged to the Advertising Standards Agency (ASA). Including a brand @mention and/or brand website URL is not enough to distinguish that a specific post or content is part of a marketing communications campaign.

When working with brand ambassadors, it is recommended that a formal contract is put in place including a compliance clause to check content before it is published on social media. If brand ambassadors provide additional value by posting extra content linking to a brand (above and beyond the agreement), they still need to include an identifier such as #Ad, as there is a relationship with commercial intent in place and the ambassador is not acting as a consumer.

It is important to mention that even if there is no formal brand ambassador agreement in place, but a person receives a benefit e.g. a free product or service with the expectation of a positive endorsement, this is still considered as marketing communications. Therefore, it needs to be clearly identified with an identifier like #Ad.

What about #SPON?

The core difference between advertising and sponsorship is where the editorial control of content sits. Sponsorship is where payment is made but the editorial control remains with the creator, not the brand who has supplied the payment. On this basis, sponsorship is not considered as advertising and does not fall under the CAP code.

Sponsorship that is provided in the form of lending someone a computer for the purpose of an honest review or by providing financial support for a series of news articles (without editorial input), this is not considered as advertising. Similarly, items provided for free by brands to bloggers/vloggers without the control of the content, also fall outside of the CAP code but it is worth the blogger/vlogger acknowledging receipt for clarity.

There has been confusion and controversy over the appropriate use of identifiers. High profile influencers and brands have ended up in trouble through using #SPON or #SP as they are not providing enough clarity that the content is part of a marketing communications campaign. It is recommended to avoid using #SPON #SP or phrases like ‘Brought to you by’ or ‘in partnership with’ as it is considered as too ambiguous over the nature of the content.

Staying on the right side of the law

The responsibility for identifying content that is classed as marketing communications falls to the publisher and influencer as well as the brand. Below are six recommendations to ensure organisations remain compliant with UK advertising law regarding social influencers:

  1. Establish whether the content is advertorial or editorial (who has control over the content created?)
  2. Put a formal contract in place with your brand ambassadors including a clause on pre-vetting content before publication.
  3. Use clear marketing communications identifiers #Advert #Ad #AD.
  4. Make it clear before your consumer engages with the content if it is part of a marketing communications campaign. For example, including an identifier in the title of a video.
  5. Vloggers must verbally acknowledge a partnership.
  6. Look and feel of the content needs to be distinctly different to the content usually posted by an influencer so that it’s more easily identifiable as marketing communications.