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Getting it right becomes even more complicated when you consider the fact that influencers don't always get the law right, as recent press coverage of the Advertising Standards Authority's (ASA) investigation into the activity of one influencer, Sophie Hinchcliffe (known online as Mrs Hinch) demonstrates.
Mrs Hinch is not alone in being scrutinised by the ASA, which is working hard to respond to the complaints it receives about unclear ads and also to educate influencers about best practice.
The Committee of Advertising Practice (the ASA's sister organisation) spelled out its requirements in guidance directed towards those involved in influencer marketing last year. The guidance makes it clear that it has to be obvious that a post is advertising something, if an influencer has been paid to do it and if there is some form of editorial control over the influencer by the person or company paying for it, including if this is just final approval of a post before it is published.
Some posts may not be caught by the CAP Code, (for example, if the post does not require approval by the brand owner), but the Consumer Rights Act 2015 will nevertheless apply and the posts will be under the scrutiny of the Competition & Market Authority (CMA). The CMA requires posts to be labelled as "advertisement feature" or "advertisement promotion" to make it clear money is changing hands even if an ad falls outside the scope of those subject to the CAP Code (which those involved in the advertising process should still, ideally, have regard for).
Taking all this into account, how can you, as the business paying for influencers to market your brand, control what the influencer does and make sure that they don't overstep the mark? Beyond researching how an influencer tends to post and whether or not they comply with the rules explained above, how can you reduce the risks of using an influencer to promote your brand landing you in trouble from a reputational or legal standpoint?
At the point you engage with an influencer (either directly or via their agent if they have one), you should make it a requirement that they adhere to relevant laws and also any rules or guidance published by the CMA, ASA and/or CAP. You should also consider building in specific references to how ads should be posted in line with the relevant law and rules in your media guidelines, which you can then provide a copy of to the influencer and require them to adhere to in your contract with them.
Using celebrities to promote brands is of course not a new thing, and the kind of clauses used in celebrity endorsement agreements to protect a brand can be used with influencers. These include undertakings not to do anything to damage the reputation of or make negative statements about the brand or company they are promoting and not to damage their own reputation when promoting the brand by acting in an illegal or inappropriate manner.
If you would like more information from TLT on engaging with influencers, or are interested in attending an event on the subject, please contact Philippa Mcfeat.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.
20 June 2019
by James Touzel