Policing influencer marketing is like a game of whack-a-mole – so are the new guidelines enough?

Confusion reigns despite update to influencer marketing guidelines.

The Committee of Advertising Practice (CAP) released fresh guidelines for brands and influencers last week, seeking greater transparency when it comes to adverts and other sponsored content on social media. But, policing this sphere of marketing is akin to a game of whack-a-mole, according to those charged with enforcing the recommendations, raising the question as to whether the new guidelines go far enough?

Regulators didn’t stray far from the guidance already in place; rather the refreshed guidance sought to “provide clarity on when content like [affiliate marketing] should be identified as advertising".

Among the key points are that influencers must be aware of what it described as the “technical quirks” of each platform they post content to and at what “opportunity” they should identify something as an ad.

On image-led Instagram, for example, “an identifier such as ‘Ad’ could be included on the image itself,” suggested the CAP. Or in the case of a 20-minute YouTube video where only a 20-second fraction of it has been sponsored (e.g. in a ‘clothes haul’) that portion in the video needs to be flagged as an advert.

Not far enough

Despite the best intentions of the CAP, some social media experts argue that the new guidelines still do not provide enough clarity or incentive to ensure an even playing field. This update follows ISBA’s launch of a contract template for advertisers to use when working with social media talent, yet numerous examples of brands and influencers simply not labelling commercial content continue to emerge.

"Brands have gotten away with surreptitiously advertising through influencers for too long and accountability is definitely needed,” said Felix Morgan, senior strategist and innovation lead at Livity - whose influencer clients include Google and PlayStation - in response to the CAP’s release.

Similarly, Matt Donegan, managing director, Social Circle, said the guidelines are a step in the right direction, "but there are still people slipping through the net.”

In fact, Donegan said that it still encounters talent (and talent agents) who are happy not to disclose commercial partnerships to keep the content ‘organic'.

Part of the problem lies with the pace of acceleration and the volume of new platforms entering the market. What was once a sponsored blog post or YouTube video is now paid for tweets, single Facebook posts or pictures on Instagram. And thanks to Snapchat and the rise in ephemeral content, it’s becoming even harder to spot a post that’s not being tagged appropriately.

“It's a struggle for most brands just to keep up, let alone be expected to adhere to vague guidelines with so much room for interpretation," continued Morgan.

"While brands undoubtedly need to take responsibility, they also need guidance on where specifically the line is to ensure they don't cross it, and I'm not sure these guidelines are capable of offering that within such a rapidly evolving landscape.”

Game of whack-a-mole

It’s an issue that the Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA) are fully aware of.However, the sheer volume of branded content coupled with limited resources means they are largely reacting to bad actors, rather than actively rooting them out. As such, both bodies are heavily reliant on the general public and, increasingly, other brands and influencers who are playing by the rules to come forward if and when they spot unmarked advertising. After an investigation, a ruling is issued but this process takes time and by that point several other pieces of content may have been uploaded.

“We know that still there are occasions of no or labelling and inadequate labelling. No labelling in particular needs to be dealt with,” added Guy Parker, chief executive of the ASA at an event on online advertising recently.

He said it’s like a game of ‘whack-a-mole’ and admits it will “never fix this entirely but we and the CMA have got to make sure we’ve got the issue of non-labelling under control".

Meanwhile, for those that do get caught the penalty is relatively lenient. One of the CMA's landmark cases was against Manchester-based Social Chain for using its own social media accounts, as well as the profiles of widely-followed social media influencers to promote films, games and various commercial apps across 19 different marketing campaigns – without readers being informed that the content was paid-for advertising.

This particular case spanned 15 companies and 43 "social media personalities" who published content for Social Chain. After the investigation, they were all warned not to do it again.

But that probe took over five months and it wasn't until over a year later that the findings were released.

Jon Riley, project director, online reviews and endorsements, at the CMA said that brands, influencers and marketing companies like those embroiled in the Social Chain case will pay a “heavy reputational price” for flouting the guidelines, but suggested that the government body is “open to undertaking further enforcement work,” for example – fines.

In the absence of financial deterrents, Donegan urged the CMA, ASA and CAP to create a set of rules, not guidelines, for brands and influencers to adhere to. “That way nothing can be misinterpreted and relationships stay honest and transparent,” he said.

Risk of stifling creativity

There are, of course, many content creators that work hard to ensure their audiences know when a brand has paid to be involved. And for those, it’s Morgan's worry that these new guidelines could encroach on the creative integrity.

"I can't see the idea of labelling images on Instagram and directly tagging an image as an ad ever taking off as this will hugely compromise the creative integrity behind their content. Instagram content rises and falls by the craft and creativity that goes into the imagery, and if they are expected to stamp a big advert acknowledgment on them it will devalue the content to the point it becomes worthless,” he said.

"One of the main points the guidelines try to make is that they don't want to discourage affiliate relationships, but if the guidelines are too restrictive and stifle creativity it will be inevitable. Brands need to take more responsibility, but the guidelines should also be bringing brands and influencers closer together, and decisions like that will make it prohibitive for any self-respecting influencer to attach their name to the collaboration."

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Jennifer Faull

Jen Faull is deputy news editor at The Drum with a remit to cover the latest developments in the retail and FMCG sectors. Based in London, she has interviewed major business figures including top marketers from Mondelez, Unilever, Tesco, and Lidl.

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