Picture of two hands holding a mobile with the words influencer marketing on screen

[Big Cheese Expertise Guest Post] Hi, I’m Sarah Burns, founder of prize promotions agency Prizeology. We specialise in knowing all the legal stuff when it comes to promotional marketing and influencer marketing, so here are my top tips for brands working with bloggers on free and paid campaigns.

Have the regulations on disclosure and social media changed? 

No, they haven’t.

Yes, there has been a lot talk on social media about transparency – influencers disclosing to their followers when they have been paid in some shape or form to post – and the introduction of new hashtags.

However, despite what you may have been led to believe, the regulations on disclosure haven’t changed and neither has the language that those involved in influencer marketing need to use to show they have a business relationship with a brand or company.

At the moment, as far as the Advertising Standards Authority (ASA) is concerned, if there is a commercial relationship between a brand and an influencer, on social media outlets such as Instagram, Twitter and Facebook, content which meets certain criteria should be flagged with #ad.

When it comes to blogs, if the content has been paid for, even if it was in kind, and you as a business have some kind of say in the presentation of that content, the relationship you have with the blogger needs to be made clear to readers upfront.

A blogger might use a particular form of words rather than #ad, and that probably wouldn’t be a problem to the ASA, but if the blogger then talks about the post on another platform, #ad would almost certainly be appropriate.

This situation may change in the future, as in 2018, the ASA consulted on whether additional labels above and beyond #ad, are needed, However, at the time of writing this post (Feb 2019), it hasn’t yet reported on its findings so #ad is the one that matters (the ASA doesn’t really like #spon because it isn’t precise enough).

Is the ASA the only UK body that regulates influencer marketing?

Basically, when a business rewards an influencer with a payment, free gift or other perks, any resulting social media posts become subject to consumer protection law:

  • This is regulated by the Competition and Markets Authority (CMA), under the Consumer Protection from Unfair Trading Regulations 2008
  • The CMA can take companies to court if it believes these regulations have been breached.

When a business working with an influencer also has control over the content – and this is a key concept – the content becomes subject to the CAP Code:

  • This is the rule book for non-broadcast advertising
  • It’s administered by the ASA, which can investigate complaints and apply sanctions

At the end of 2018, the ASA published a fairly ‘plain English’ guide for influencers.

If you want to add influencer marketing to your strategy or already work with them, you should download and read this guide ‘An Influencer’s Guide to Making Clear that Ads are Ads, to consider how it affects them and therefore you.

Front cover of the ASA's Influencers Guide

More recently, the CMA has published additional guidance, which is also worth reading.

Influencer marketing is still relatively new and it’s a developing area, but as a business, you need to inform yourself about it in the same way that you need to inform yourself about hygiene standards, employment law or tax returns.

It might seem tedious and complicated (actually it isn’t that difficult), but you do have a responsibility to get to grips with it.

If I give a blogger a product, does the blogger still need to disclose?

It does depend on the conversation you have with the blogger, but if you have no control at all over what they say about your product, how they show it, and when and where they promote it – in other words, they are at liberty to be extremely rude about your product if they want to be – the content they produce probably won’t qualify as an ad under the CAP Code, so they won’t need to use #ad.

In the ASA’sAn Influencer’s Guide to Making Clear that Ads are Adsthere’s a flow chart which helps influencers decide what, if any, labels they need.

ASA Influencers Guide flow chart

However, the guiding principles are transparency and not misleading people, so put yourself in the consumer’s position and consider what you would want to know.

If you work with a blogger who doesn’t disclose, are you liable?

Again, it depends on the precise circumstances, but if someone complains to the ASA about a post involving one of your products and the complaint is upheld, you and the blogger may well be judged to be jointly responsible.

This is what happened when influencer and Made In Chelsea star Louise Thompson promoted Daniel Wellington watches without disclosing.

If you can show that you had instructed the blogger to disclose and they didn’t, that might help your case, but working with influencers who don’t disclose means you risk damaging the reputation of your brand.

Only you can decide whether that’s worth it, but I would argue that it isn’t.

Cork noticeboard with pinned not saying people buy from people they trust

Some influencers insist that their fans don’t want to know when they’ve been paid to promote a product and if they tell them, they will unfollow.

Some research my company, Prizeology, conducted last year found that, on the contrary, when brands are transparent, 66% of the public say their perception of that brand improves.

Ultimately, though, if you’re a reputable business using influencer marketing as a strategy, why would you want to work with someone who isn’t honest and open with their audience?

So why has there been all this chat about the disclosure rules changing?

Because the CMA, which is the body which can institute prosecutions, recently announced that 16 high-profile celebrity influencers had formally agreed to disclose when they have been paid to endorse products, or have received gifts or been lent products in return for promoting them.

The list includes:

  • Ellie Goulding
  • Rita Ora
  • Alexa Chung
  • Rosie Huntingdon-Whiteley

as well as several other household names, all of whom have massive online followings.

The CMA’s intention was to send a strong message – and perhaps a veiled threat – to all influencers, brands and businesses that they must be open and clear with their followers, and the hoo-ha it’s generated would seem to indicate the plan has worked…

Want to know more?

You can find out more about the world of prize promotions on the Prizeology website and the Prizeologist, our blog, features advice on running successful prize promotions. We’re also on Twitter and Instagram.

P.S. At Prizeology, part of our job is sourcing prizes. Sometimes the prizes are paid for and sometimes they’re given in exchange for media space, so if you think you might be in a position to offer prizes to our clients, do get in touch as it would be great to add you to our contacts list.

More food for thought…

Hey, Charlotte here, thanks for reading through to the end! If you enjoyed this then you’ll love ‘How to run a successful (and legal!) prize draw‘ and ‘How to protect your intellectual property‘.

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