Instagram is swiftly becoming the world's number one hot spot for advertisement. Companies are significantly increasing their yearly marketing budget on social influencers and are recognising the impact and influencing power they can possess on consumer purchasing decisions. It is therefore of paramount importance that influencers and brands alike recognise the varying jurisdictional legal standards to which they are held accountable, in particular, where their audiences are spread over multiple territories.

The top tips for social influencers operating in the US are summarised by our colleague and Finnegan Partner, Anna B. Naydonov in a recent IPWatchdog blog post also published here. The US legal Instagram advertising standards were further examined by Elyse McNamara and Finnegan Partner, Margaret A. Esquenet in a recent blog post here, which reviewed the recent investigation by the Electronic Retailing Self-Regulation Program into an Instagram loving Yogi.

In the UK, advertisement regulations are governed by the Advertising Standards Authority (ASA). The ASA considers a post to be an #ad where:

  1. The social influencer was paid in some way for posting the content (the ACA views any kind of commercial relationship between the parties as qualifying, for example, free gifts and hotel stays would be considered as "payment"); and
  2. The brand has some control over the content posted by the social influencer (where the brand reserves the right to approve posts or where the brand asks for the post to be published on a certain day).

Where the above criteria are met, social influencers need to label promotional posts clearly to fall within the guidelines of the ASA. Identifying the post as an #ad or #advert at the beginning of the post is sufficient and influencers should avoid the temptation to hide this label within the mist of other hashtags or in the 'see more' section of the post. The ASA recommends against using terms like #sponsored, "in association with [brand]" or "thanks to [brand] for making this possible" as these terms do not clearly identify the commercial relationship between the parties.

Posts where the social influencer has been #gifted the product or service, but where the brand has no control over the content posted are not subject to the advertising codes of the ASA but are regulated in the UK by the Competition and Markets Authority's (CMA). To avoid legal action taken by CMA, social influencers should clearly label paid-for content (whether financially or otherwise).

A Review of Recent ASA Rulings on Social Influencer's Posts

  1. ASA Ruling on Cocoa Brown in association with Olivia Buckland

The Instagram post concerned: "The V-Day prep is well underway and I'm topping up my tan with my fave @cocoabrowntan by @marissacarter 1 HOUR TAN MOUSSE... more". Upon clicking on the caption, additional text stated "Original –it gives me such a natural glow with no streaks and is the perfect accessory for date night with bae [heart eye emoji] Get yours now @superdrug #TeamCB #CocoaBrownTan #ValentinesDay #BrandAmbassador".

The ASA held that using the term #BrandAmbassador was insufficient to demonstrate the extent of the commercial relationship between the parties. Coco Brown had paid Instagram star Olivia Buckland for her post and had a significant level of control over the post content. The ASA stated that Instagram promotions of this kind must be obviously identifiable as marketing communications e.g. by stating #ad in the post.

See full ruling here.

  1. ASA Ruling on The White Star Key Group t/a Skinny Caffe, in association with Jemma Lucy

The Instagram post concerned: "I've been staying in shape with my go to @skinnycaffe products. I love the Coffee's [sic], Hot Chocolate's [sic] and the Thermosyn capsules are amazing! I love to use them as me and some of the girls have been seeing great results and they work with or without exercise. You can lose up to 7lbs in 7 days with Thermosyn. Right now you can claim your first packet of Thermosyn free by clicking here". The post included a link to the website.

Instagram star Jemma Lucy failed to identify an advertising post as an #ad. While the post included the Skinny Caffe's Instagram handle, it did little to identify itself as a marketing communication and failed to demonstrate the commercial relationship between the parties.

See full ruling here.

In addition to making advertising posts obviously identifiable as such, social media posts advertising products must also comply with the other applicable rules and should not be misleading, harmful or offensive.

Should you have any questions on the legal implications of social media posts please do not hesitate to contact one of our IP Practitioners based in London.

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.