Asos and influencer Zoe Sugg (AKA Zoella) have been issued with a warning from the UK's advertising regulator for failing to correctly signpost a paid-for Instagram post.
The decision from the Advertising Standards Authority (ASA) underscores the nuances faced by both brands and influencers when badging sponsored content within the confines of different social media platforms.
Last July, Sugg posted an Instagram Story from her official account which featured an image of her wearing a floral maxi dress. The accompanying text stated: "Lots of you loving the dress I’m wearing in my newest photos... it's from [Miss Selfidge]. Swipe up to shop… ([I've also popped it on my @liketoknowit profile if you’d rather shop straight from the app).”
Additional text at the bottom right-hand side of the image, obscured by Instagram's direct message icon stated: "*affiliate".
If a user chose to swipe up on the Story on-screen, a link would take them to the product purchase page on Asos' website
One member of the public complained the post didn't meet current advertising guidelines because it wasn't "obviously identifiable as a marketing communication".
The regulator agreed and banned the ad, saying that neither Sugg nor Asos has made clear their commercial intent in publishing the photo.
In its defence, Asos highlighted how Sugg was a member of its affiliate community, meaning she can earn a commission from Asos sales through a third-party influencer network.
The brand said it made it clear to all of its influencers that disclosure labels needed to be "clear and prominent" and believed "*affliate" was appropriate in this context as a signpost. It also underscored how it didn't have any advance knowledge of, or direct input or control over, the Instagram story in question.
It did, however, accept that the disclosure in the story was "not sufficiently prominent" because it was obscured by the platform’s on-screen graphics when viewed on a mobile phone.
Sugg's limited company responded on her behalf, saying it believed the post to comply with the ASA's guidelines on affiliate links by including the identifier 'affiliate' on the relevant section of the Instagram story.
The business said that Sugg had already explained to her followers that she received an affiliate commission from brands and this would be her marker in identifying it; arguing that it would therefore be clear as to the nature of the relationship between Sugg and the third-party influencer network app.
Both Sugg and Asos referred to research conducted for the ASA by Ipsos Mori on the labelling of influencer advertising, published last year. They pointed specifically to an example ad from Twitter which was tested in the research, where a higher proportion of participants identified an example with '#advert' upfront and '#affiliate' at the end as being ‘definitely an ad’ (48%) than a post with only #affiliate at the end (44%).
The report stated that the difference was directional rather than significant and Asos believed that the lack of significant difference in understanding between those two examples demonstrated that 'affiliate' was therefore equally as suitable a label as 'advert' or '#ad' to disclose affiliate deals.
The ASA, however, disagreed.
"We considered that the commercial nature of the affiliate content should have been made clear on the ad itself," said the watchdog.
"We had regard to the Ipsos Mori report as providing a useful guide to the role that labels and other factors played in helping people identify when social media posts by influencers included advertising, whilst also being aware of its limitations when considering an individual ad.
"In particular each case must be assessed on its facts and recognition of ads would be impacted by a wide range of presentational factors which would vary from platform-to-platform and from ad-to-ad."
The regulator went on: "We concluded that the ad was not obviously identifiable as such and did not make clear its commercial intent."
The ad must not appear again in the form. Asos and Zoella have been cautioned to ensure they are upfront about badging affiliate links, making clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad” at a minimum.
Following feedback from influencers and ad agencies, the ASA issued an abridged version of its guide to ad labelling and disclosure on social media platforms earlier this year.
The overhauled advice portal doesn’t contain any material updates to the current rules. Instead, it directs influencers towards a host of resources – including simplified flowcharts and infographics – nudging them to present their content correctly the first time around to avoid a run in with regulators.
The ASA’s message to influencers, and the brands using their social media feeds to promote their products, was simple: "Make it clear… there isn’t really much more to it than that."