Influencer marketing has exploded. Brands want to tap in
to the social reach of individuals and the strong relationships
they have with their audience - whether that's Kim Kardashian
(with her 49.9 million followers on Twitter), a vlogger and games
reviewer like PewDiePie (53 million YouTube subscribers) or less
widely known individuals who nevertheless command a loyal
Using influencers to spread the word about your products can
lend credibility and help you to reach demographics which are
resistant to more traditional advertising. But regulators around
the world are taking a stand against influencer content which is
advertising but does not disclose its true nature. And brands and
agencies that don't adequately control their influencer
networks are in the firing line.
In the US, the Federal Trade Commission (FTC) took action
against Warner Bros' influencer campaign for the game Middle
Earth: Shadow of Mordor (including PewDiePie). In the UK, the
Competition and Markets Authority has secured undertakings from
agencies including Starcom Mediavest and the Social Chain. Through
its 2015/2016 presidency of the International Consumer Protection
and Enforcement Network, the UK pushed action on digital
influencers to the top of regulatory agendas worldwide.
No-one is asking marketers to put influencer marketing back in
the toybox. But it's critical to have the right contracts with
your influencers and the right policies for labelling content and
monitoring influencer compliance. Not taking action now could
result in enforcement action or even criminal prosecution.
If you are paying your influencers or providing them with free
product, then the influencer needs to disclose that. In the UK, if
you also have control over the content which the influencer
produces, then it will need to be labelled with 'ad' or
similar wording - 'sponsored by', 'thanks to' and
'in association with' will not be sufficient. The
Advertising Standards Authority (ASA) has interpreted control in a
very broad sense - for example, the provision of key messages is
enough to amount to control, even if the content is in the
influencer's own words. It has even found that a contractual
restriction on an influencer promoting competitors during the
campaign period amounts to control, triggering the requirement to
label content as advertising. The disclosure of the nature of the
content also has to be timely - before the user engages with the
content - so a branded shot at the end of a video is not
sufficient. The disclosure must appear whatever device the user is
using to view the content.
Influencers may not be familiar with the regulatory
requirements. They may be resistant to labelling their content as
an 'ad', for fear of being seen to be too commercial. But
it is the brand and the agency which face the greatest risk of
action from a regulator. So it is essential that you work through
labelling issues with your influencers at the outset and ensure an
appropriate contract is in place documenting the agreement. While a
template influencer contract has been produced by ISBA - the body
representing UK advertisers - it is probably too lengthy and formal
to be suitable for use with large numbers of influencers in the
context of short social campaigns. It is therefore likely that
brands and agencies will have to establish their own templates.
Once a contract is in place, you will need to monitor compliance
and take action where influencers fail to meet the relevant
disclosure requirements. In the US, the FTC has pursued enforcement
against businesses which fail to monitor their influencers and it
is easy to see the UK regulators taking a similar stance. While
monitoring may be logistically difficult, in campaigns where large
numbers of influencers are producing large amounts of social
content, that will not be an excuse. Regulators have noted in the
past that brands seem perfectly capable of monitoring social, when
it is in their own interests to do so (for example, when checking
for infringements or tracking brand sentiment).
There is widespread non-compliance in the market when it comes
to the labelling of influencer content. But there is no indication
that the issue will move off the top of the regulators'
priority list. And it's a brand issue too - enforcement action
in this area attracts media attention and it can impact on trust if
consumers feel they have been deceived into engaging with content
they might otherwise have avoided. So now is the time to get your
house in order and ensure that your influencer marketing is
exciting consumers, not regulators.
This article originally appeared on eConnect in February
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).