The use of social media ‘influencers’ is becoming an ever more commonplace and powerful marketing method used by businesses around the world. With this power, however, comes greater legal responsibility. The challenge for influencers and the businesses that rely on them is that there is a very real risk of inadvertently breaching a range of laws including in the areas of payment, disclosure, advertising standards, contracts, and intellectual property. In this article, we will take a look at how Social Media influencers can protect themselves from legal action, including some of the key legal considerations for marketing influencers.
ASA escalates action against influencers who break ad rules
In January 2022, the Advertising Standards Agency (ASA) announced its intention to ramp up sanctions against influencers who repeatedly break the rules. They sanctioned six influencers who have repeatedly not made it clear that some of their Instagram posts are, in fact, advertisements. As the ASA states in its announcement, “Our rules are clear: it must be obvious to consumers before they read, ‘like’ or otherwise interact with a social media post if what they are engaging with is advertising”.
In one such case in September 2019, the ASA found that a social media post by influencer Matthew Zorpas on behalf of Brooks Brothers (with whom Zorpas had a sponsorship agreement at the time) was a direct breach of the Committees of Advertising Practice (CAP) Code, as it did not show the tag “#ad” upfront. Even though the post was not a ‘paid for’ ad under the sponsorship agreement, the ASA considered that the commercial relationship was sufficient for the post to be considered a marketing communication, and as such, it fell within the remit of the CAP Code.
In extreme cases where influencers consistently breach the CAP code and refuse to cooperate with the ASA rules, there is a potential they will be referred to Trading Standards. The highest sanctions available to Trading Standards include unlimited fines, imprisonment of up to two years and confiscation of financial assets. It is more likely, however, that those who breach the ASA/CAP Code will face other penalties, such as the publishing of social media ads naming influencers who breach the code and what they have done wrong. This then has the potential for reputational damage within the very audience an influencer is trying to reach.
On the escalating of sanctions for influencers, Shahriar Coupal, Director of Advertising Policy & Practice at the ASA, explained, “For the minority of influencers that repeatedly fail to disclose their paid-for posts, it’s important their social media followers are told. In a new front of enforcement activity, we’re using targeted ads to highlight the breaches of six social media personalities to the very same audience they’re seeking to influence. When we see the necessary changes to their disclosure practices, we’ll call off the ads. But, where non-compliance persists, we’ll look to more direct forms of enforcement”.
Key legal considerations For influencers in marketing
There are a number of laws and codes that influencers should have a broad understanding of, hence allowing them to avoid an inadvertent breach. These include the following:
Consumer Protection from Unfair Trading Regulations 2008
The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) prohibits misleading acts or omissions when promoting, selling or supplying products and typically applies where the trader does deal directly with the consumer (as is the case with influencers). Where an influencer does not comply with the CPRs, it is the Competitions and Market Authority (CMA) who have the legal power to take action against them.
The CAP Code applies to those who are involved in non-broadcast advertisements. Influencers are required to meet the standards of the CAP Code if they have received payment from a brand for a post they publish, and that brand has some form of editorial control over the post.
General legal points for influencers to consider
There are several points that all influencers should consider when publishing content online, whether in the form of an Instagram image, YouTube video, or other social media post:
- Make it clear if you have been paid, given or loaned products or services relating to the content you are publishing (i.e. if you are a brand ambassador for the brand, you must say so).
- Be transparent about your brand/business relationships
- Use phrases such as “Advertisement Feature” or tags such as “#ad” “#advert”.
- Avoid using more ambiguous phrases such as “Supported by/Funded by”, “In association with”, “Thanks to [brand] for making this possible”, “Just @ [mentioning the brand].”
- Do not falsely represent yourself as a consumer of a brand, product, or service if you are not.
- If you provide a link or discount code for an item featured in a post or online content, this is considered advertising and must meet the ASA/CAP Code.
- Only make claims you can personally back up (i.e. do not make false claims).
- Do not advertise age-restricted products and services where it is illegal to do so.
- If you are selling food or supplements, be aware of the specific CAP Code rules on this (15 Food, food supplements and associated health or nutrition claims). For example, you cannot make a claim that a supplement can cure illnesses.
- If you are involved in online prize draws and giveaways, you will need to ensure you comply with Section 8 of the CAP Code.
- Be careful when making comparisons with a competitor’s products or services – you must be objective and avoid creating confusion between the brand and its competitors.
- Do not allow your content to cause harm and offence in your marketing communications – i.e. your content must not contain anything that is likely to cause serious or widespread offence, including harmful or offensive gender stereotypes.
- In accordance with the CAP Code, celebrities cannot endorse medicines.
- In accordance with the CAP Code, celebrities who are popular with children are not allowed to promote food or drinks that are high in fat, salt and sugar
The above list only provides an overview of the practices and legal considerations that social media and marketing influencers need to be aware of. Given the range of rules and laws that apply in this area, where possible, it is worth investing in influencer marketing law training. This will give you a strong grounding to ensure you do not find yourself in breach of the law. It is also recommended to find and retain the services of a trusted Solicitor specialising in breaches of marketing law, even if just to check you are acting within the current advertising and consumer legal regime in the UK. Any measures you take to avoid falling foul of the current legal requirements for influencers will ensure that you avoid fines, reputational damage, claims, or any other form of penalty.
If you are facing prosecution relating to breach of advertising, consumer protection or trading Standards laws, our Consumer Protection & Trading Standards Solicitors can help. You can contact us through our contact page here.