Ad watchdogs simplify influencer guidance, but are current rules 'impractical'?

The ASA’s message to influencers, and the brands using their social media feeds to promote their products, is simple: ‘Make it clear… there isn’t really much more to it than that’.

However, the need for updated guidance less than six months after the watchdogs already pooled resources and issued a stark reminder around the rules gives some insight into the complex relationship between influencers and regulators.

There’s a growing feeling among influencer agencies that a lack of understanding around the current rules, which cover everything from how influencers should signpost affiliate marketing and gifting to straight-up paid-for posts, needs to be addressed by regulators.

In September 2019, the ASA recommended that #ad was necessary “as a minimum” on sponsored posts after research it conducted with Ipsos Mori found that such a well understood disclosure, such as #ad, increased the likelihood of the UK public to distinguish paid-for content as something that was ‘definitely an ad’.

For its part, the CMA has highlighted that consumer protection law prohibits posts from being “misleading”. It says that disclosures must be “upfront” and that actions such as tagging a brand or a business in a commercial post do not “go far enough” to conform with its legal requirements.

Though both bodies have tried to engage with the influencer community through several training programmes and initiatives, and now through updated guidance, there’s a feeling among among those in the sector that regulators could be doing more to help educate influencers, especially when it comes to more multifaceted campaigns involving discount code deals and affiliate links.

Are current guidelines ‘impractical’?

Influencer spend is on the up, but the industry has a trust problem with 96% of people in the UK saying they do not trust influencers. So if influencers want to keep working with brands, they're going to have to listen to the ASA.

However in a maturing landscape, regulators also need to recognise that bloggers’ Instagram and YouTube feeds now function as more than just a media buy for brands.

Some Instagrammers ink ‘Stories-only- deals with advertisers; DTC players like Hello Fresh enlist micro-influencers to run months-long campaigns across different platforms; fast-fashion companies ink contracts with creators centred around embedding affiliate links and sharing discount codes. As big-name brands seek authenticity and ROI, rarely does a relationship between an influencer and a brand stop at a single photo on the grid, accompanied with an #ad label.

Talent and influencer agency ITB Worldwide counts Topshop and Mastercard among its clients. Its account director Aaron King says this change in the way brands work with influencers means it has taken this responsibility of educating them into its own hands.

“When we’re contracting influencers on behalf of our clients we have extremely tight disclosure guidelines in order to protect the brands we work with as best as possible. We’ve developed language that ensures that there is no room for misinterpretation, requiring influencers to immediately state the nature of the commercial relationship,” he explains.

King is clear that influencers understand the basics. However, he argues that when it comes more complex issues like how long commercial relationships should be disclosed after an initial post (ie if an influencer runs one campaign with a fashion brand but then continues to wear that fashion brand without being paid for subsequent posts) there’s “no clear guidance” on labelling place, so it’s had to create it’s own.

“Alongside our disclosure clause for sponsored content, we specifically dictate that the talent must adhere to, for a set amount of time, the nature of the commercial relationship between the two entities,” he says.

“There has been no clear guidance from the ASA on how this should be signposted other than [the suggestion that] the nature of the commercial relationship must be immediately identifiable at the outset, the amount of time this should remain active for has also not been provided.

“Collectively as an industry we’re told when we’re wrong. But when will we be told what good looks like?” he asks, saying it begs a further question: “Does more time need to be spent understanding what consumers do and don’t understand?”

For Anna Hart, fashion blogger and founder of One Roof Social, a social media consultancy that works with the likes of John Lewis and Elizabeth Arden, her business has also undertaken the responsibility of educating influencers on what the ASA and CMA are looking for, especially when it comes to more nuanced affiliate deals.

“We spend a lot of time of this, but mainly because the suggested guidelines are impractical and scream that there is a lack of understanding on the ASA and CMA’s part.

“Influencers obsess about using certain tags, when the reality is [that] as long as they don’t hide affiliate links, and make it clear that a link is tagged, they’re fine to use whatever method they wish,” she adds.

The ASA has now presented its rules on affiliate deals in a flowchart, but there’s still no concrete suggestion on how exactly to badge such content.

Nick Breen, senior associate at international law firm Reed Smith is concerned that the amount of information the ASA and the CMA are now bombarding influencers with may confuse them further.

“The tag-line to the guidance 'Make it Clear…there really isn’t much more to it than that…' doesn’t chime with the multiple, lengthy notes and guidance that have been published on this issue,” he asserts.

“There is also a missed opportunity for CAP and the CMA to comment on the use of tools made available by the social media platforms (such as Instagram’s ‘paid partnership’ feature). This leaves influencers unsure on how and when they can use these tools and whether they can suffice as the necessary form of disclosure, without the #ad.”

Some, however, see the ASA’s update as a step in the right direction for the nascent influencer industry.

This includes Phil Ridsdale, director of client servicing at Seen Connect, which has worked with Very and Adobe.

“Overhauling the guidance available is a positive step. The effectiveness of this guidance is reliant on brands, influencers and agencies adhering to it," he says.

“It’s our shared responsibility to promote trust and transparency. Unlike the broadcast model, that still functions with traditional regulatory body pre-approvals, the immediacy and scale of influencer marketing is heavily reliant on self-regulation.”