On 6 February 2020 the ASA, jointly with the CMA, published a “new and improved” version of its Influencers’ guide to making clear that ads are ads. The ASA states that the changes made reflect its research as well as feedback it received on the previous version. The ASA has also published Influencers’ Flowchart – Is my post an ad and do I need to label it?, Infographic: Influencers’ Cheat Sheet and Infographic: Affiliate Marketing.
The updated guidance confirms that the CMA can take action in relation to any influencer advertising for which payment is received. Where, in addition, a brand has exercised editorial control over what the influencer is publishing, the ASA can also take action. As previously, both “payment” and “editorial control” are very broadly construed. Affiliate marketing is always within scope for ASA regulation. Affiliate marketers include those who use obvious advertising (such as banners) to promote a third party’s product but also some social media influencers; the key element is that the advert or other promotional content contains links, discount codes or similar, which, when used by a consumer, trigger a payment to the affiliate.
As the ASA advised when it published its research, influencers and affiliates should, as an absolute minimum, include a prominent label, such as “Ad”. Any label or other means used to alert consumers to advertising must be upfront (before people click/engage), prominent (so people notice it), appropriate for the channel (what can the consumer see and when?) and suitable for all potential devices (it needs to be clear on mobiles and apps too). Affiliates and influencers who accept editorial control by the brand must also ensure their advertising complies with the ASA’s codes generally (the brand also retains responsibility for compliance).
If you’re an Influencer or content marketer on social media and want legal advice on #ad #gifted, influencer contracts such as promotion contracts or influencer agency contracts then get in touch. I’ve helped a number of influencers with all kinds of legal issues.