Clearly Distinguishable Advertising – Watch Out Influencers...Just Tagging the Label Is Not Sufficient!

In this digital world, more people than ever are dependent on social media platforms and the influencers using these platforms to help them decide what to buy. From promoting luxury cars to fast fashion trends, social media influencers hold extensive power to affect the consumption decisions of many individuals worldwide through platforms including Instagram, Facebook, TikTok, and Snapchat.

However, a recent determination by the Australian Ad Standards Community Panel (Panel) provides a clear reminder to all commercial brands and social media platforms that influencers are required to make it clear when their posts are actually advertising. The case involved an Instagram post by social media influencer, Anna Heinrich that was found in breach of Section 2.7 of the Australian Association of National Advertisers (AANA) Code of Ethics (Code) which requires advertising to be clearly distinguishable as such. Since 1 February 2021, amendments to Section 2.7 of the Code no longer requires advertising to be distinguishable 'to the relevant audience'. This means the argument previously adopted by brands, that because their targeted social media audiences understand how influencers work they do not require a transparent disclosure of the sponsorship or paid partnership at play between the brand and influencer, is no longer permissible. There is now a positive obligation imposed on influencers to disclose commercial relationships in a clear, upfront manner than can be easily understood.

The Instagram post included an image of Heinrich in a green dress, and the text, "Turning my apartment into a Runway [green heart emoji] Then back to my PJs I go! Wearing: @runawaythelabel". The Panel noted that Heinrich's post did not exhibit the sponsorship transparency required by Section 2.7.

Notably, the Panel mentioned the AANA's Practice Note in relation to Section 2.7 of the Code, which states:

"Influencer and affiliate marketing often appears alongside organic/genuine user generated content and is often less obvious to the audience. Where an influencer or affiliate accepts payment of money or free products or services from a brand in exchange for them to promote that brand’s products or services, the relationship must be clear, obvious and upfront to the audience and expressed in a way that is easily understood (e.g. #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion). Less clear labels such as #sp, Spon, gifted, Affiliate, Collab, thanks to… or merely mentioning the brand name may not be sufficient to clearly distinguish the post as advertising."[1]

The Panel's determination that Heinrich's post breached Section 2.7 of the Code provides more clarity as to what is and isn’t acceptable under the Code. Simply mentioning and tagging the brand name is not sufficient and it is now highly likely that anything falling short of an express disclosure of the paid/sponsored commercial arrangement between the influencer and brand will be considered a breach. 

This is an important reminder to all social media influencers and the brands they promote of the responsibility to establish a clear distinction between the influencer's paid promotions and the other content posted on their social media accounts.

 Article written by Felicity Thurgate and Peter Le Guay

[1] Ad Standards Community Panel – Case Number 0055-21 (10 March 2021) (accessible at https://adstandards.com.au/sites/default/files/reports/0055-21.pdf); AANA's Practice Note in respect of the Code is accessible at https://aana.com.au/self-regulation/codes-guidelines/code-of-ethics/.