Social media influencers - when is it acceptable to hashtag?

Answer

In today's society, there has been a huge increase in what we refer to as 'social media influencers'. By definition, they are simply users of social media who have an established presence in a certain industry and tend to have a large online following. 

With influencer marketing on the rise due to the audience exposure and commercial success that a brand or business can benefit from, it is also attracting a lot of attention. This particularly concerns how influencers are marketing products through social media. Regulatory bodies are starting to tighten the rules on marketing communication where content has been misleading and ambiguous.

The most recent guidance published on 23 January 2019 was released by the Competition and Markets Authority (CMA), which states how social media influencers need to be clear to their followers when they have been paid, incentivised or rewarded by a brand to post on their social media platforms. The CMA has also gone one step further and engaged with a number of celebrities, who have provided undertakings with a view to improving their disclosure in their own social media posts. Celebrities who have provided these so far include Alexa Chung, Binky Felstead, Michelle Keegan and Mario Falcone, to name a few.  

It is therefore imperative to ensure that influencers and brandscomply with advertising rules. Even with a detailed influencer marketing contract in place, not everyone will comply with these rules.

The regulations

The Advertising Standards Authority (ASA) is the UK's independent regulator of advertising across all media and works closely with the Committee of Advertising Practice (CAP) in enforcing and regulating marketing and adverts. The CAP is the self-regulatory body that is responsible for writing the Advertising Codes to make sure brands and businesses comply with advertising rules.

With the CMA now working closely with the ASA to tighten the rules for labelling social media marketing, influencers and brands will need to be stricter to ensure content is transparent, proportionate and consistent.

Platinum Gaming Ltd t/a Unibet

The decision in the ruling on Platinum Gaming Ltd t/a Unibet (Unibet) reinforces how important it is to make sure all advertising communications are correctly identified. Unibet had a contractual relationship with Mr Nicky Henderson, a racehorse trainer who occasionally posted blogs on his Twitter account. On 27 October 2018, Henderson posted from his official Twitter account a tweet which included a link to this blog and read: "We're underway with the jumps and my exclusive @unibet blog is now ready to read…". The tweet was challenged on the basis that the complainant believed Unibet had editorial control over the tweet and therefore breached rules 2.1 and 2.4 of the CAP Code.

Unibet had a contract with Henderson which stated that he was to be paid as an ambassador and, more interestingly, it included a term which stated Unibet were allowed to manage his social media activity through his Twitter account. Unibet tried to argue this was not the case and that Henderson was to display Unibet branding, but they did not have control over his Twitter account. They went on further to argue that the contract was a generic template used by all of their ambassadors and the term was inherent in each contract as a means of protection. In Henderson’s case, Unibet did not feel the need to intervene with his Twitter activity.

Following the investigation, the ASA was of the opinion that the tweet was a marketing communication and should therefore have been identified correctly. The complaint was upheld on the basis that Henderson had been paid and had entered into a reciprocal agreement with Unibet. Further, it was considered that Unibet did have control over Henderson's tweets, as Unibet required him to post about his blog on social media.

While Henderson disclosed in his Twitter bio that he was a Unibet ambassador, it was ruled that this was not sufficient to comply with advertising rules because it did not differentiate marketing communication tweets from those that were not, especially as he used his personal Twitter account, not an account specifically for Unibet.  

Lessons to be learnt

For influencers, merely stating on their social media profile that they have a relationship with a brand or business will not be sufficient. There is a need to make sure that every post which is for the purposes of advertisement is correctly identified as such. 

For a brand or business that uses social media influencers to enhance their business profile, it is imperative to make sure influencers correctly use identifiers in their social media content to comply with advertising standards. These include:

• “advertisement feature”;
• “#ad”; or
• if using Instagram “paid partnership”.

As a general rule, posts needs to be apparent without the need for people to click for more information; that rule goes for any means of published content.

Why is this relevant to commercial law?

Brands or businesses may approach legal professionals, particularly in the commercial sector, for advice and guidance on drafting social media influencer contracts in order to regulate and protect the relationship with the influencer. It is therefore imperative for legal professionals to understand how social media influencers work as well as the advertising rules in order to advise clients. Legal professionals will also consider the types of questions that professionals need to ask to assist with drafting influencer marketing contracts.

Sarah Magee is a second-year trainee at DWF. She is based at the firm’s Manchester office.