ARTICLE
20 October 2021

Influencer Marketing: Active Monitoring Mandatory!

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Global Advertising Lawyers Alliance (GALA)

Contributor

With firms representing more than 90 countries, each GALA member has the local expertise and experience in advertising, marketing and promotion law that will help your campaign achieve its objectives, and navigate the legal minefield successfully. GALA is a uniquely sensitive global resource whose members maintain frequent contact with each other to maximize the effectiveness of their collaborative efforts for their shared clients. GALA provides the premier worldwide resource to advertisers and agencies seeking solutions to problems involving the complex legal issues affecting today's marketplace.
Anyone who contracts an influencer will of course ensure that the influencer has to comply with all advertising rules: Mentioning #ad and so on. But that turns out not to be enough!
United States Media, Telecoms, IT, Entertainment
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Anyone who contracts an influencer will of course ensure that the influencer has to comply with all advertising rules: Mentioning #ad and so on. But that turns out not to be enough!

Attention, advertisers! That wonderful contract with all the rules an influencer has to abide by is of course fine and very sensible. It - should - state, among other things, that in every social media post, the influencer must mention the fact that he or she is getting paid or is receiving free products. This is usually done by using the hashtag: "#ad". But it may also be told in the video: "I received [this product] from [name advertiser]". 

As an advertiser, do you get off scot-free if the influencer does not follow through despite this contract? No! As an advertiser, you have your own independent duty to check whether the influencer is actually complying with the rules of the Advertising Code for Social Media (RSM).

This is what the Advertising Code Committee ruled this summer. It was about an influencer who posted a video on TikTok. He is happily showing off an energy drink from Bang Energy. Meanwhile, he talks about whether or not pineapple should be on a pizza. The ACC considers the statement at the bottom of the video not clear enough (it said: "@bangenergy @bangenergy.ceo #BangEnergy"). Thus, this is a violation of the Advertising Code for Social Media 2019. The influencer was held accountable for this.

Bang Energy hoped to get away with the violation; after all, the contract with the influencer included an obligation to comply with the Advertising Code for Social Media. But this is not the case! The Advertising Code for Social Media requires the advertiser to make an active effort to ensure  that the influencer complies with the rules. A contract is not enough. The advertiser must take action and check for himself whether the influencer is being clear.

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.

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