On 18 March 2021, the ASA published a report entitled Influencer Ad Disclosure on Social Media, which sets out the findings of a three-week compliance monitoring exercise undertaken in September 2020. The ASA monitored the accounts of 122 influencers it had previously contacted, assessing over 24,000 Instagram stories. It found that nearly one in four stories was advertising, but only 35% of them were clearly labelled and obviously identifiable as such. This was despite the ASA’s efforts to educate the industry. Particular issues were:
- Inconsistent disclosure across stories. When an advert spans a number of consecutive stories, unless it is absolutely clear that this is part of the same posting, each story must be disclosed as an ad.
- Inconsistent disclosure across stories, IGTV, reels and posts. It is not enough that a post is accurately disclosed as an ad if the corresponding story is not. Where a story highlights a “new post” that is an advert, the story must make that clear.
- Visibility of ad labels. Labelling of stories as adverts is often inadequate because labels are in too small a font, obscured by the platform architecture or otherwise difficult to spot, often being in a very similar colour to the background. The #ad label should be the first thing the consumer sees and not appear at the end of a block of text or below the fold.
- Affiliate content is still an ad. Using #affiliate or #aff with no additional upfront disclosure is insufficient. #ad should also be used, including when promoting a discount code.
- Own-brand ads. Influencers should not rely on bios or past posts to make it clear to consumers that they are connected to a product.
The ASA has put the influencers and some of the brands they promote on notice that if future checks on any platform reveal problems, it will take enforcement action. This may include promoting such non-compliance on a dedicated page on its website, or through its own targeted paid search ads on platforms. The ASA also intends to work directly with the Competition and Markets Authority (CMA) on further enforcement action. The CMA’s own work in this area includes securing undertakings from Facebook (the owner of Instagram) that it will do more to prevent “hidden advertising” being posted on its Instagram platform.
If you’re an influencer seeking legal advice on influencer advertising, or just a lawyer to help your business with issues you face, get in touch.