An Instagram story seen on Zoe Sugg’s Instagram page on 6 July 2019, featured an image of Zoe wearing a floral maxi dress. Text stated “Lots of you loving the dress I’m wearing in my newest photos!...it’s from @missselfridge Swipe up to shop… (Also popped it on my @liketoknowit profile if you’d rather shop straight from the app).” Additional text at the bottom right-hand side of the image, obscured by the direct message icon stated “*affiliate”. Swiping up on the story took users to a product page on the ASOS website.
The complainant challenged whether the ad was obviously identifiable as a marketing communication.
Asos.com Ltd t/a ASOS said that Zoe Sugg was an ASOS affiliate which meant that she could earn commission from ASOS sales through a third-party influencer network. The Instagram story linked to the influencer network’s app, which allowed influencers to earn commissions from any sales. They said they made it clear to all of their affiliates that disclosure labels needed to be clear and prominent. They said that they did not have any advance knowledge of, or direct input or control over, the Instagram story in question.
They accepted that the disclosure in the story was not sufficiently prominent, because it was obscured by the platform’s on-screen graphics when viewed on a mobile phone. However, they believed that in principle the disclosure “affiliate” should be considered adequate to signpost where there is a purely affiliate relationship in place between a brand and influencer. They said that “affiliate” was a clear and accurate description of the nature of the content, and that consumers would not see it as an “ad” in the commonly understood sense of that word.
They referred to a research report conducted for the ASA by Ipsos MORI on ‘Labelling of influencer advertising’, published in September 2019. They referred specifically to an example ad from Twitter which was tested in the research where a higher proportion of participants identified the example with #advert upfront and #affiliate at the end as being ‘definitely an ad’ (48%) than the post with only #affiliate at the end (44%). The report stated that the difference was directional rather than significant and ASOS believed that the lack of significant difference in understanding between those two examples demonstrated that “affiliate” was equally as suitable a label as “advert” or “#ad” to disclose affiliate ads.
Zoe Sugg Ltd said that Zoe Sugg had an affiliate relationship with a third-party influencer network and received a commission when Instagram users clicked through the swipe-up action link on the Instagram Story. They believed the story complied with CAP’s guidelines on affiliate links by including the identifier “affiliate” on the relevant section of the Instagram story. They said that Zoe Sugg had explained to users that she received an affiliate commission, by using the identifier “affiliate” and that users would therefore be clear as to the nature of the relationship between her and the third-party influencer network app.
Zoe Sugg Ltd also referred to the Ipsos MORI research report. They highlighted that, when comparing participant responses across the range of different examples tested in the research, the label “affiliate” performed better as an identifier than “sponsored” or “spon”. They also said the report showed that, in some instances, the term “affiliate” was better recognised than the term “ad” when used at the beginning of the text in an ad. They referred to an example Instagram story ad tested in the research where “#advert” was used at the start of the post and it was recognised as marketing communications by 43% of those surveyed. In a separate example where “#ad” was used at the start of the text in an Instagram post, 36% of participants recognised it as an ad. They compared this with an example of an influencer ad on Twitter where the label “affiliate” was used at the end of the text and where 45% of participants aged between 18 and 64 years recognised it as an ad.
In another example, which ASOS had also referred to, 38% of participants had recognised as an ad a Tweet which used the term “affiliate” at the end of the text. They said the findings demonstrated that the term “affiliate”, when used in the same placement as the term “ad”, was as least as likely as that label to result in an ad being identified as such.
The CAP Code stated that marketing communications must be obviously identifiable as such and that they must make clear their commercial intent, if that was not obvious from the context. The ASA understood that the link to the dress from the Instagram story was an affiliate link. This meant that Zoe Sugg would receive a commission for any sales generated by ASOS.com from purchases made through that link.
The Instagram story was therefore directly connected with the supply of goods provided by ASOS, and was an ad for the purposes of the Code. Although we acknowledged that ASOS had no direct input into or control over the ad, we nonetheless considered that, as the direct beneficiaries of the marketing material through an affiliate programme, they were jointly responsible for the ad and its compliance with the CAP Code.
The ad in this case appeared on an Instagram story which played for five seconds (although users could tap and hold the screen to ‘freeze’ the story) and would have been viewable on Zoe Sugg’s stories for 24 hours. It therefore appeared in a transient medium and was also likely to have been viewed on a mobile phone. There was no mechanism for users to be alerted before clicking on an account’s story, or stories, as to whether they included ads.
We considered that the commercial nature of the affiliate content should have been made clear on the ad itself. We had regard to the Ipsos MORI report as providing a useful guide to the role that labels and other factors played in helping people identify when social media posts by influencers included advertising, whilst also being aware of its limitations when considering an individual ad. In particular each case must be assessed on its facts and recognition of ads would be impacted by a wide range of presentational factors which would vary from platform-to-platform and from ad-to-ad.
The research showed that labels which were clearly visible and well understood did raise the likelihood of people positively identifying material as advertising. However, a significant percentage of participants were not able to identify influencer advertising as “definitely an ad” even where “#ad” was positioned at the start of text, and those low levels of recognition were also found in the wider academic literature. The research findings demonstrated the challenge of obviously differentiating all types of advertising content – including traditional brand ads ? from other content on social media platforms. Turning to the ad in question, it featured an image of Zoe Sugg wearing a dress and the caption tagged the brand of the dress alongside the text “swipe up to shop”.
Additional text at the bottom of the story stated “affiliate”. However, that text was obscured by the app’s ‘direct message’ icon. We acknowledged that the ad included references to the brand of the dress and a call to action to purchase it. We, however, did not consider it would be sufficiently clear to users that there was a commercial relationship between Zoe Sugg and ASOS and that the story was in fact an ad. Although the text “affiliate” was obscured on the Instagram story, we also considered whether the term itself would be sufficient to obviously identify an ad as such. Both ASOS and Zoe Sugg Ltd had pointed to various examples in the research which they believed supported the argument that “affiliate” was a sufficient label to communicate that content was an affiliate ad. However, only 38% of participants felt they would be able to confidently explain what the word “affiliate” meant when displayed on social media, which put it amongst the terms that participants were least confident explaining.
In no example where “affiliate” was used in isolation did more than 45% of participants recognise it as an ad, and the low levels of recognition of ads in the research overall demonstrated the difficulties of obviously differentiating ads from other content on social media platforms. We considered that the term “affiliate” was therefore unlikely to be sufficiently clear as a standalone label to ensure affiliate ads were obviously identifiable.
We concluded that the ad was not obviously identifiable as such and did not make clear its commercial intent. It therefore breached the Code. The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
The ad must not appear again in the form complained about. We told ASOS.com Ltd and Zoe Sugg Ltd to ensure that affiliate links were obviously identifiable as marketing communications and made clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad” at a minimum.