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Popular bloggers, vloggers, celebrities and social media personalities (also referred to as ‘influencers’) can have a lot of influence over people’s buying decisions if they promote a product or service in their posts.
People need to know if influencers have been paid, incentivised or in any way rewarded to endorse or review something in their posts. It’s important that they make this clear to their followers. This includes when a product or service has been given to them for free.
This needs to be clearly stated when a product, brand or service is tagged, linked or endorsed in any way.
If you mislead your followers, you may be breaking consumer protection law, and could face enforcement action from the CMA, local authority Trading Standards services or the Department for the Economy in Northern Ireland. You might also break industry rules on advertising.
What you need to do
Say when you’ve been paid, given or loaned things
Any form of reward, including money, gifts of services or products, or the loan of a product, is ‘payment’ – whether you originally asked for it or got sent it out of the blue (e.g. ‘freebies’). Influencers receive freebies because of their high public profile and because brands or businesses hope they might post about them in return. If you have not purchased a product or service yourself, but received it free, make this clear.
Be clear about your relationship with a brand or business
If you are including discount codes, competitions or giveaways, or references to your own range of products, don’t assume this is enough to make the relationship clear. Make sure you are transparent and state that the post is a promotion.
Past relationships matter too. Even if you don’t have a current relationship with a brand, if there was a past relationship (or you received product loans, gifts and/or other incentives) people need to know about this. Only relationships within a reasonable period need to be declared: anything within the last year is likely to be relevant to followers. If you aren’t transparent about these circumstances, you could be misleading people.
Don’t be misleading
It’s important you don’t give the impression that:
you are just a consumer when you are actually acting for your own business purposes or on behalf of a brand or other business
you have bought something that was given to you as a gift or on loan
you have used the service or product yourself, if you haven’t
Consumer protection law requires that posts must not be misleading.
Without appropriate disclosure, people may reasonably assume that an influencer who is promoting, endorsing or reviewing a product or a service, does not have a relationship with the businesses they are promoting. They may think that an influencer has purchased the product themselves and therefore considers it good value for money or of good quality.
Similarly, if you are promoting a product or service you have not used yourself, make sure this is clear– otherwise people might reasonably assume that any results that are being claimed are ones you have achieved or experienced first-hand.
How to be honest about what you’re promoting
The law is not prescriptive about how you declare relationships with brands, especially as social media continues to change and evolve. However, if you have received or been promised any form of payment or other incentive, this should be clearly stated in a way which is:
transparent, easy to understand, unambiguous, timely and prominent
apparent without the need for people to click for more information, no matter what type of device they’re using to view the post
This means that the disclosure should be made upfront.
It is not likely that there will be just ‘one way’ of explaining your relationship to a brand. The CMA takes the view that ‘Advertisement Feature’ or ‘Advertisement Promotion’, are useful descriptions, but it has seen a range of other wording, (including #Ad, #Advert, and using the ‘Paid Partnership’ tool on Instagram in addition to these hashtags), which convey the appropriate messages simply and effectively.
Practices we have seen, which we consider do not go far enough to comply with the legal requirements, include:
tagging a brand or business in either the text, picture and/or video of a post without additional disclosure
tagging a gift from a brand in in either the text, picture and/or video of a post without additional disclosure
using discount codes in a post without additional disclosure
using ambiguous language without additional disclosure in a post (for example ‘thank you’; ‘made possible by’; ‘in collaboration with’; or ‘thanks to…’)
unclear use of hashtags, for example:
using #sp; #spon; #client; #collab; etc.
adding #ad directly after the name of the brand or business (for example #[BRANDNAME]ad)
when the disclosure (for example #ad, #advert) is not prominent because it is hidden at the end of or among other text and/or hashtags
product placement where there is an associated (and undisclosed) payment or other incentive
disclosing the commercial affiliation only on an influencer’s front, home or profile page
You don’t need to make multiple statements in each post where there is both a past and current relationship with the same brand or business. Usually, just stating the current relationship is the most appropriate. However, if you have relationships with several brands or businesses featured in the same post, make sure you state all of these prominently and clearly.
Each social media platform has different features and is used in different ways so it’s important that influencers, agencies and brands are mindful of these differences and how they affect what a follower sees or understands from the post.
Please note: these materials do not constitute legal advice and should not be relied upon as such.
We have co-published a guide on how to label ads correctly with the Committee of Advertising Practice (CAP). It explains how to comply with consumer protection law and the Advertising Codes enforced by the Advertising Standards Authority (ASA).
The CMA also has more advice available to help you understand what to look out for with online reviews and endorsements.
It is the responsibility of influencers, their agents, and brands to keep up-to-date with relevant consumer protection law as well as any guidance from the ASA about complying with its Advertising Code.
The CAP offers an eLearning module on this topic (as far as it is covered by the Advertising Code). You can also contact their Copy Advice team for more specific advice. To stay up to date, you can sign up for their newsletters, follow @CAP_UK on Twitter or find them on LinkedIn.