Does Parliament’s inquiry into influencer marketing signal stricter legislation ahead?
A new House of Commons inquiry aims to examine influencers and their lack of regulation after the Advertising Standards Authority found that more than three quarters of influencers “buried their disclosures within their posts”. Jorja Knight, Legal Counsel at PromoVeritas, the marketing compliance specialists, considers the consequences of this and how they could still be avoided.
In March 2021 the Commons Select Committee on Digital, Culture, Media and Sport (DCMS Committee) announced an inquiry into an increasingly important marketing channel: influencers. It will seek to assess the impact of influencers in media and popular culture and whether there is sufficient regulation of the promotion of products and services by influencers.
MP Julian Knight, Chair of the DCMS Committee said “Influencers wield a growing power over people’s lives. We want to find out how influencer culture operates and what impact it has”.
Now that Parliament is realising that influencers can cause some serious damage to their followers’ mental and financial health there may be calls for tighter regulation and a shake up for the advertising industry.
The catalyst for the inquiry was the ASA’s recent investigation into Influencer Ad disclosure –which was itself a reaction to the 55% increase in complaints about social media influencers in the last year. Over a three-week period the ASA monitored 122 UK based Instagram influencers who had previously been on their radar over a lack of disclosure and from analysis of 24,000 posts they found the main problems to be:
- Inconsistent disclosure across Instagram Stories, Reels, and posts: Ads spanning consecutive Instagram stories were not all marked as ads – posts as well as corresponding stories must be disclosed as ads.
- Poor placement and visibility of ad labels: Ads in Instagram Stories were often obscured or difficult to spot owing to the font size or the colours used.
- Significant Affiliate content: The use #affiliate or #aff without any additional upfront disclosure to explain that the content is an ad. Influencers also cannot rely on their bios or earlier posts as a way of disclosing their connection to a product.
- Own-brand ads – Influencers relying on bios or old posts to disclose their relationship with a brand.
As Guy Parker, Chief Executive of the ASA said, “There’s simply no excuse not to make clear to the public when positive messages in posts have been paid for by a brand”.
A lack of regulation?
In our view the shine from influencer marketing is wearing off. In addition to the concerns about disclosures key influencers have come under fire for travelling to Dubai under the guise of ‘essential work’ during lockdown and there have been further issues about the use of filters on images and the general poor example of a life that many influencers lead.
However we also feel that the Parliamentary inquiry should look less at the lack of regulation and more into the lack of power or willingness to enforce it.
The Competition & Markets Authority – the government department responsible for enforcing UK competition and consumer law – issued some very clear guidance for influencers in the spring of 2019, based on the requirements of legislation (primarily the Consumer Protection Act). Posts must not be misleading and influencers must be transparent about their relationships with brands.
To their credit, the CMA have taken it further, seeking voluntary but binding undertakings from 16 popular influencers who had been investigated for failing to disclose that their posts were in fact paid for adverts, and from Instagram to commit to do more to prevent hidden advertising.
Rather than more legislation, the DCMS Committee really need to investigate how the CMA and the ASA can better enforce the current laws and codes and use them as a more effective deterrent to the influencers who break them. Dragging the subject into Parliament and creating a draconian set of laws will take time and result in both a lack of creativity and the inevitable discovery of ways to bend the rules by those who need to follow them the most.
We believe that the CMA and in particular the ASA should be allowed to impose stricter sanctions and we need to put more responsibility onto platforms like Instagram and TikTok to enforce disclosure, as they the ones who gain the most from influencers and their posts. Adding an ‘ad filter’ that must be used when there is an arrangement between the brand and the influencer would be simple for the social media platforms to enforce. Until then it is vital that brands and agencies stick to the rules to avoid a future with stricter legislation.
Here are our top suggestions for ensuring risk free influencer campaigns:
- Training – get some expert training and guidance on what the key rules to follow are and how to select the right Influencer.
- Due Diligence – do thorough background checks on potential influencer talent.
- Guidelines – create a clear framework for both the brand and the influencer to work within that is clear about what the rules are and how to follow them.
- Contracts – don’t ignore this vital element. It controls the dialogue and determines the responsibilities of both parties. It needs to be drafted by someone with relevant experience, not just a rehash of an old media contract.
- Check – always review copy for a post ahead of publication to ensure it doesn’t breach the rules and carry out spot checks to ensure the influencer is sticking to them.