The UK's leading trade body for advertisers, the Incorporated Society of British Advertising (ISBA), has launched a new Code of Conduct for Influencer Marketing which comes down firmly on the side of #ad as their preferred way to disclose influencer marketing in social media.
Since the dawn of influencer marketing there has been a tension between the desire to market to consumers in a manner that is less 'blunt' than traditional advertising, versus the principle that advertising must be clearly identifiable by consumers. This principle was enshrined with the launch of commercial television in the 1950's and its latest expression was as one of the 31 commercial practices banned by the Consumer Protection Regulations (CPRs) in 2008, which states that it is always unfair for an advertiser to use editorial content to promote a product where the advertiser has paid for the promotion, unless this is made clear to consumers. The CPR's also bans influencers from falsely represent themselves as consumers. Both of these legal principles are reflected in the self-regulatory CAP Code, enforced by the Advertising Standards Authority (ASA).
For years now, we have witnessed a cat-and-mouse game between the ASA and brand owners, as well as influencers, about how paid influencers' posts can be effectively disclosed. The ASA recognises that as the CPRs are principles based, they cannot be prescriptive about the form of disclosure that is used. Then again, we've never seen an ASA adjudication about a complaint where an influencer has used something other than #ad which has not been upheld. Recently however, as reported here, the ASA had begun to be slightly more flexible, acknowledging that using some platform tools, such as Instagram's 'Paid Partnership' tool, is consistent with the CAP Code.
The new ISBA Code provides a clear mandate to use #ad, placed so that it will be seen before users engage with the content. This will be welcomed by the ASA, and is clearly consistent with best practice, but may not be helpful for those brands, including some that are perfectly legitimate, who are still trying to persuade the ASA that #ad is not the only hashtag that can achieve effective disclosure.
In any event, the Code covers much more than just disclosures. In three sections, it sets out best practice for advertisers and brands, talent agencies and influencers respectively. Hopefully, the large advertisers that comprise ISBA membership will already be following most of the guidance set out for brands, but the talent agencies and influencers, in particular, should find that they can raise their game by following the guidance. For example, the Code requires influencers to act with trust and integrity; to disclose any historic content that could embarrass the brand; to desist from inflating the number of their followers; to ensure their content is not misleading and that claims are substantiated; and not to use filters, photoshopping, or editing techniques to create misleading impressions about products or their benefits.
The Code should certainly help brands, talent agencies and influencers to improve their commercial relationships, as well as their regulatory compliance. And while some brands and influencers will still be looking for ways to make their posts clearly or obviously identifiable through means other than #ad, it will be for the ASA, the Competition and Markets Authority and ultimately for the courts to decide whether they have been successful, by reference to the CAP Code and the CPRs respectively.
“There is no excuse for failing to disclose when an ad is an ad, or for misleading consumers with photo editing. Equally, influencers often face real challenges when it comes to financial flows and mental health. Meanwhile, brands know influencer marketing can be effective, but struggle to demonstrate ROI.” Phil Smith, ISBA