#InfluencingResponsibly: Musings beyond the Code

 

Author: Joseph Cahill - ASA Complaints Executive

 

Influencer marketing has grown significantly since our first ruling on a Wayne Rooney/Nike tweet in 2012. For established celebrities it has served as an extension of their media presence, but for many it is an entirely new world where someone can go from a bedroom-based vlogger to a well-known influencer with fans around the world.  From a regulatory perspective, we have seen how these individuals who hope to make a living through their social media outlets, have gradually come to terms with the responsibilities that come with this.

Rather than reiterating what we expect of brands and influencers here, we thought that it would be worthwhile detailing some of the other aspects of the influencer marketing industry that we’ve become aware of in the course of sharing guidance and enforcing our rules.  While these are not all things we can tackle under our rules, we (and our sister organisation CAP) find that we’re being asked about them with increasing frequency so it seemed worthwhile sharing our thoughts.

Breaking the law, breaking the law

As the regulation of influencer marketing has become more and more of an established part of the advertising ecosystem, we are aware that there are some bad actors looking to circumvent the requirements.  We’ve heard stories of brands telling influencers to not disclose ads, with some rumoured to be offering to pay more for non-disclosure. Similarly, we are aware of instances where brands have requested that influencers wait for an initial wave of engagement before labelling their post as an ad.  These practices seem to take place across the influencer marketing supply chain involving some agencies, brands and influencers. 

In addition to their blatant disregard for the Advertising Code and consumer protection law, these goings-on also reveal that some brands and influencers seem perfectly happy exploiting the trust of an influencer’s fan base.  With the audiences’ trust in the influencer being a hallmark of influencer marketing, this is a commodity which some appear happy to take advantage of.  If that trust continues to be eroded by the actions of these ‘bad apples’, influencer marketing will undoubtedly lose its effectiveness – undisclosed or not – and this risks ruining a popular and lucrative industry for all those responsible marketers that take the care to play by the rules.  

If you have personal experience of being asked or encouraged to side-step the rules and potentially break the law by doing either of these things, by all means send the evidence though to [email protected] and we’ll do what we can to share this intelligence with the relevant authorities (and any membership bodies).

Fake followers and fake ads

Another big issue that we hear about often is ‘fake followers’.  As our rules apply to the placement and content of marketing communications, they are only likely to apply in cases where an influencer is specifically referring to their number of followers in an advertising context, e.g. when advertising their value to brands who might want to work with them. 

We’re also hearing of more and more instances of fledgling influencers pretending to work in collaboration with a brand and even going as far as to label the content as advertising to try and lend some credence to their claims. 

There isn’t much we can do about either of these activities, but if brands start to doubt the effectiveness of a campaign because there’s a suggestion of fake followers – they’ll probably take their ad budgets elsewhere.  Similarly, if a brand takes exception to someone ‘pretending’ to work with them and trading off the goodwill they’ve built up, that person could potentially open themselves up to a legal challenge.

Don’t feed the trolls

Another development we have noticed are complainants who contact us on malicious basis -with the intention of causing trouble for an influencer rather than expressing a genuine concern about content being misleading.  We have seen blogs and online forums where members of the public mock influencers and we are aware that these discussions can often lead to complaints, sometimes in large numbers.  

Regardless of the intent behind the complaint, a breach of the Code is a breach of the Code and we’ll take whatever action we need to, but there’s no-one at the ASA who enjoys being used to ‘troll’ influencers or brands.  Repeated complaints trying to catch out an influencer who does label their ads correctly is a waste of our resources, so if a complainant is found out in this way, they may find that the ASA is no longer open to hearing their complaints.  In any case, our advice is to make sure that influencers are not breaking the rules, then the ASA can easily dismiss the complaints. 

And finally…

Influencer marketing is a complex area to regulate and there is a low barrier to entry for both influencers and brands, who may not be aware of or care about their responsibilities.  The relatively new and potentially lucrative nature of influencer marketing was always likely to attract some bad actors, but we can see it’s an industry that increasingly wants to marginalise and irradiate bad practice. 

We’ll continue to play our part, but these questionable practices aren’t something we can remedy on our own.  The industry very much has a part to play in ‘getting its house in order’ to ensure its continued growth and success.


  • Joseph Cahill

    Joseph Cahill

    ASA Complaints Executive

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