Influencer Marketing: Avoiding the Legal Pitfalls

8th October 2018 Media Law

In August this year, it was announced that the Competition and Markets Authority (CMA) begun an investigation into whether celebrities are making it clear when they are paid to endorse a product on social media. The Advertising Standards Authority (ASA) has intervened on numerous occasions in recent years in response to posts by celebs and ‘influencers’ on social media.

For obvious reasons, brands increasingly collaborate with people who are popular on social networks such as Facebook, Twitter and Instagram to discuss and/or recommend a product. Influencers offer an efficient and economic route into markets which can avoid traditional media or be otherwise hard to reach. There is a separate and ongoing debate in the PR/marketing industry about the effectiveness of such tie ups between brands and influencers.

The rules for influencers operating in the online space are clear - they must make it clear to consumers if they have been paid or rewarded in some way for an advert. For these purposes, an advert is content which a brand has ‘paid’ for and over which they have some form of editorial ‘control’ including just final approval. This applies to adverts on seemingly informal forums such as social media platforms.

News of the CMA investigation provides further incentive to influencers and brands to remember when collaborating to advertise products or services - particularly on social media.

  • Recognise the legal and regulatory boundaries prevention is better than cure: if in doubt, seek legal advice!
  • Avoid social media pitfalls - if in doubt, consider including “#ad„ on Twitter and Instagram posts and, for video content on Facebook or YouTube, say beforehand that it is an advert.
  • Claims must be accurate and endorsements must be genuine see ASA guidance, BCAP and CAP Codes
  • Brands should obtain documentary evidence and contact information for those who advertise on your behalf
  • Ensure that the contract in place between brand and influencer addresses the need to comply with the relevant rules

Helpfully, the ASA has recently released new guidance for social influencers.

The Influencer’s Guide is an online resource that aims to help all parties involved in influencer marketing to follow the rules. The Influencer’s Guide also includes a flowchart to help users quickly work out whether a post needs to make clear that it’s an ad. You can access the Guide here.

If you have any questions regarding the potential legal and regulatory implications of using social influencers to advertise your brand, or would like to arrange a meeting with one of our solicitors then please do not hesitate to contact us.

Key contacts:

Nick McAleenan

Laura Wilkinson

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Laura Wilkinson is an Associate Solicitor located in Manchesterin our Commercial LitigationMedia Law departments

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