Under the influence.

One of the most novel occupations created by the rise of social media is that of the influencer. Influencers earn a living by advertising and promoting brands and connecting them with their own social media followers. An industry code is helping ensure influencers disclose the commercial arrangements that sit behind sponsored posts.

Snapshot

• In our recent blog post, we discussed the new Australian Association of National Advertisers’ Code of Ethics (Code), which prescribes that advertising and marketing should be clearly distinguishable as such.
• In the context of influencers, sponsored posts should clearly disclose the commercial relationship eg via hashtags such as #ad, #advert or #paidpartnership. Merely mentioning (or tagging) the brand name or using less clear terms such as #sp or #gifted may not be sufficient to clearly distinguish a post as advertising.
• A couple of recent decisions by the Ad Standards Community Panel (Panel) provide helpful guidance on how the Code will be applied.

Wrong way for the Runaway

The Panel received complaints about the following post by Bachelor winner, Anna Heinrich:

The Panel reasoned that Heinrich was likely to be involved in a commercial arrangement with Runaway The Label by virtue of the use of the brand name and ‘clear placement of the product’. The Panel found that the post was in breach of the Code on the basis that it did not disclose the commercial relationship between the brand and the influencer and, therefore, was not clearly distinguishable as advertising.

Runaway The Label did not respond to the complaint but Heinrich’s post has now been updated and tagged in Instagram as a ‘Paid partnership with runaway the label’.

Scent Packing

In another recent development, a complaint was made to the Panel regarding a post by another high profile influencer, Rozalia Russian. In Rozalia’s Instagram post (below), she is seen holding a Tom Ford perfume bottle which was provided as a gift by the brand, in an undeclared sponsored post.

The Panel found that ‘the post did meet the definition of advertising in the Code’ as it was ‘reasonable to assume that the motivation for an advertiser to provide a free product to an influencer with whom they have a positive relationship is that they will post about the product or otherwise draw the attention of their followers to the brand’. As such, and given that the post did not disclose that it was advertising, it failed to meet the requirements of the Code.

Consequences of non-compliance

Breaching the Code may result in bad publicity and reputational damage for both the influencer and the brand. Additionally, if the breach also amounts to a breach of the Australian Consumer Law, penalties can be significant.

#AlwaysHaveAnAgreement

For brands using influencers, the need for well documented Influencer Agreements is more important than ever. These agreements should state how influencers are to distinguish their paid or sponsored content when posting content on social media. Importantly, this will minimise the risks of misleading or deceptive conduct.

For more information on protecting your brand when engaging influencers, contact Bespoke.