The CMA guide. Copyright: CMA.
When you think of a social media influencer, you probably think of a young person posting fast-talking vertical videos about products and places they’ve experienced starting with a hook and going on to make noises by tapping on things (that’s ASMR) and feature what they’re wearing today or show them getting ready to go out.
That’s probably not you. But that doesn’t mean you aren’t an influencer, too.
What is Influencer Marketing?
The Chartered Institute of Public Relations (CIPR) Influencer Marketing Panel defines
influencer marketing as “The art and science of forming, or changing, a public’s opinions and behaviours via a third party online…Influencer marketing at its core is partnering with individuals who have a significant audience and influence within a particular segment. Influencers can drive a message – often in the form of original or co-created content – to the masses or to a micro-targeted audience.”
In 2013, the CIPR’s Social Media Panel produced guidelines for members, giving information on how to effectively disclose paid relationships to organisations when sharing or resharing content via personal channels.
Its 2020 update said: “Now, as a PR practitioner, not only do you receive incentives to promote an organisation as part of your day job with the aim of influencing some sort of behaviour change to achieve an objective – whether it be driving purchasing decisions, changing attitudes or shifting behavioural patterns – you too are an influencer in your own right.”
As a result, since then I’ve been adding #ad to my Social posts where they are about clients or any other organisation or person I have a “value exchange” with – anything of value including beyond cash. I’ve also chosen to add it where I comment on clients’ posts because doing so helps their reach.
What, me?
So how does this affect you? Well, the guide for how to correctly disclose relevant relationships written by the CMA and CAP has just been updated and now includes a wider definition of who counts as an influencer in UK law: “An ‘influencer’ includes any human, animal or virtually produced persona active on any online social media platform, such as Facebook, Instagram, Snapchat, TikTok, Twitch, YouTube, and others.”
So that’s you, even when you’re not wearing your professional hat. And even your pets, if they have their own accounts. Seriously!
Which law is this?
The law that’s brought this about is the Digital Markets, Competition and Consumers Act 2024 (DMCC Act) and it backs up the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code), which has been updated over a number of years.
When do I need to be careful?
So what relationships count now? The new version of Influencers’ guide to making clear that ads are ads says, with my emphasis in bold: “If you’ve received payment or any other incentive, or you are otherwise personally or commercially connected to the brand”
”This includes money, free products, or being an owner, employee, or friend of the brand. You must disclose even if the brand doesn’t oversee your content.”
“Everyone in the chain (including brands, marketers and influencers) is responsible for following the law. The CMA expects there to be robust compliance processes in place that accurately reflect the requirements of the law.
“You are expected to disclose throughout any ongoing relationship and in relevant content for a period of 12 months after a relationship ends.”
What counts as ‘payment’ or ‘relationship’?
“any incentive – even if it’s not money – also counts as a ‘payment’…If you have any kind of commercial relationship with a brand, this qualifies as ‘payment’
“It doesn’t matter if there was no obligation to post about free items / services received, it still counts as ‘payment’ and needs to be disclosed. Similarly, if you promote any brand that you, your family, or your friends own, it needs to be disclosed as an ad.”
See the useful flow diagram in the CMA’s Influencer Guide for a simple way to decide if your planned post is an ad and needs to be flagged..
What about my own promotional content?
“Consumer law does not distinguish between types of endorsements, so whether you are promoting your own products/services or advertising/endorsing something on behalf of a brand, a clear and upfront disclosure is always necessary.”
“if it’s not obvious from the context that something’s an ad, a clear disclosure is needed upfront.”
“Your audience shouldn’t have to check your bio or scroll through your other posts to realise you’re promoting your own products so make sure you clearly label those posts as ads.”
Why should I bother?
At this point you may be thinking having to flag as an advert your share of a post by your cousin’s business may seem a bit extreme.
But here are three reasons why you should take efforts to comply with the law and the guidance on it: 1) It’s good ethical practice and therefore good for your professional and personal reputation.
2) The CMA guide says: “80% of the UK online population prefer it when influencers are clear about when they are advertising something.”…”This affects how they respond to the posts, including whether they trust the recommendation”…”When users know the content they are watching is an ad, it builds trust and allows them to make informed decisions. Poor disclosure makes users wary of influencers’ genuine content.” So it’s in your interests to do so.
3) The CMA and Trading Standards enforce the code. “CMA and Trading Standards Services have powers to investigate and take legal action, including imposing fines and requiring corrective measures, to stop breaches of consumer protection law which may harm the collective interests of consumers…Breaking the DMCC Act is against the law.
“The ASA enforces the CAP Code and can act when you’re advertising your own products (whether you’re selling them yourself or doing so in collaboration with a third party), running a competition, prize draw or giveaway and when you post affiliate marketing.” Obviously, all of these are damaging for your professional and personal reputation, so best avoided.
What could happen if I don’t do the right things?
If you don’t clearly disclose when your posts are advertising, the ASA and CMA can impose sanctions to enforce compliance.
“The ASA can: Add your details to a dedicated ‘non-compliant social media influencer’ page for up to three months (before consideration of further sanctions); and Run ‘On-Platform Targeted Ads’, alerting your followers that you have repeatedly failed to properly disclose your ads.
“Brands can also be added to the ‘non-compliant online advertisers’ page.
“The social media platform can also impose sanctions such as taking down your content, removing functionality or closing your account completely. Brands may also stop working with you.
“You could also face formal enforcement action by the CMA or Trading Standards. Under its direct consumer enforcement powers, the CMA can impose financial penalties and issue directions for breaches of certain consumer protection laws, including Part 4 of the DMCC Act. The CMA has taken action against a number of influencers”
What do I need to avoid doing?
Obvious things like fake reviews and non-disclosure of paid content, but also “Part 4 of the DMCC Act bans ‘unfair commercial practices…including posting a review that conceals the fact that it has been incentivised and…failing to identify a commercial intent behind a social media post; omitting or hiding ‘material’ information (e.g., that you are an ambassador for a brand whose product you have posted about).”
What should I do to keep out of trouble?
“People should be able to immediately recognise when content is advertising – without having to click or interact with it.
“79% of people in the UK think influencers should put ad labels where they can see them straight away, without needing to click or search for them.”
“Where a platform provides a tool to label branded content for you, this may be sufficient if the label is upfront and prominent.“ Instagram and LinkedIn both have such tools, but I still add #Ad to the text to make the relationship clear.
If the platform tool isn’t enough, “Both the ASA and the CMA expect labels that “say it how it is.” We recommend:
#Ad
#Advert
#Advertising
#Advertisement
#AdvertisementFeature”
“It’s not necessary to use a ‘#’ in the label, provided it is prominent and separate from other content.”
Where should it be?
“The disclosure should be at the very beginning of the advertising content…Any label you use needs to be clear, prominent, upfront, timely, appropriate for the platform and format of the content (e.g. a post, a story, a reel), and suitable for all devices.! Don’t bury the disclosure in other hashtags or leave it poorly contrasted with the content background.”
“Always put yourself in the audience’s shoes – if you didn’t already know, would you be able to tell immediately, without a shadow of a doubt, whether that piece of content is advertising?”
“Stories: If advertising spans several stories, especially if they may be viewed separately, you should label each individual story in the series…each individual piece of content must be clearly labelled.”
For more detailed guidance, go here.
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