#AD OR #ATRISK? What The Arb's Influencer Ruling Means For Brand Owners

As consumers increasingly turn to social media for recommendations, influencer marketing has become one of the fastest-growing and most influential forms of advertising and one of the most valuable tools available to brand owners.

By leveraging the reach and credibility of social media personalities, businesses can engage consumers in ways that traditional advertising often cannot. Yet, the authenticity that makes influencer marketing so effective also presents legal and reputational risks when consumers are unable to distinguish genuine opinion from paid promotion.

A recent ruling by the Advertising Regulatory Board (ARB) reinforces the importance of transparency in influencer marketing and signals greater accountability for advertisers. While the decision centred on the absence of a clear sponsorship disclosure, its significance extends beyond the use of hashtags such as #ad or #sponsored. It highlights the growing responsibility of brand owners to oversee the use of their intellectual property, manage influencer relationships and protect consumer trust.

More Than Self-Regulation

The ARB’s decision forms part of South Africa’s self-regulatory advertising framework under the Code of Advertising Practice, which requires advertising to be readily identifiable and prohibits communications that are likely to mislead consumers.

Although the ARB is not a statutory regulator, its decisions carry considerable practical weight. Major broadcasters, publishers and digital platforms subscribe to its jurisdiction, meaning that non-compliant advertising may be refused publication or removed.

Importantly, these principles align with broader legislative obligations. Sections 29 and 41 of the Consumer Protection Act 68 of 2008 prohibit false or misleading marketing, while the Electronic Communications and Transactions Act 25 of 2002 requires electronic commercial communications to be clearly identifiable. The ARB’s ruling therefore does not create new obligations; rather, it illustrates how established consumer protection principles apply to modern digital advertising.

Substance Over Form

The ARB’s reasoning is perhaps the most significant aspect of the decision. The complaint concerned social media content published by an influencer in connection with a well-known consumer brand. Although the post featured the brand’s branding and promotional messaging, it did not contain a clear disclosure identifying the commercial relationship through identifiers such as #ad or #sponsored.

The advertiser’s position was that the content appeared on the influencer’s personal account and was not part of a formal commissioned advertising campaign. The ARB nevertheless considered the nature and context of the content, including the influencer’s relationship with the brand and the use of the brand’s official promotional material.

The decision reinforces an important principle: regulators will look beyond how parties characterise their relationship and instead consider the substance of the communication. Where a reasonable consumer would perceive content as promoting a commercial relationship, transparency obligations are likely to arise regardless of whether the advertiser considers it part of a formal campaign.

Brand Protection Beyond Registration

While the ruling concerns advertising regulation, it also has important implications for intellectual property owners.

Trade marks are now routinely deployed through influencer campaigns using logos, product packaging, slogans, hashtags and other distinctive brand identifiers.

The ruling illustrates that influencer programmes should form part of a broader brand compliance framework. Failure to oversee the use of trade marks in influencer campaigns may expose businesses to regulatory scrutiny and reputational harm, ultimately diminishing the goodwill associated with their brands.

Perhaps the greatest consequence of non-compliance is reputational rather than regulatory.

Consumers increasingly value authenticity. Undisclosed commercial relationships can erode consumer trust and undermine the credibility that influencer campaigns are designed to build. For businesses with established brands, that loss of trust can directly affect brand equity and the long-term value of their intellectual property.

Transparent advertising is therefore not merely a compliance requirement; it is a key component of protecting brand value.

Practical Considerations for Brand Owners

The decision highlights the need for robust contractual and compliance frameworks.

Influencer agreements should require influencers to:

• comply with the ARB Code of Advertising Practice and applicable laws;
• clearly disclose paid partnerships;
• comply with platform-specific advertising policies;
• submit content for review where appropriate; and
• promptly amend or remove non-compliant content.

Brand owners should also monitor influencer content throughout a campaign, as compliance extends beyond the initial approval of campaign materials.

Looking Ahead

The ARB’s ruling reflects a broader global trend towards greater accountability in influencer marketing. As investment in influencer partnerships continues to grow, transparency is no longer merely a best practice; it is an increasingly important legal requirement and a key component of effective brand protection.