An Instagram post on fashion influencer Matthew Zorpas Instagram page, posted on 19 March 2019, featured an image of Matthew being measured for a suit at a tailors. It was accompanied by text which stated “A man in a well Made to Measure suit will always have a better attitude. Get 25% off your #madetomeasure experience at @brooksbrothers.unitedkingdom in Regent Street until March 31st. #brooksbrothers #madetomeasure #timelessclassics @brooksbrothers.unitedkingdom.
The complainant challenged whether the post was obviously identifiable as a marketing communication.
Brooks Brothers UK Ltd confirmed that they had a contractual agreement with Matthew Zorpas and provided a copy of the contract. They stated that their agreement ran from January 2019 to December 2019, however the post concerned was an organic post and was not sponsored by Brooks Brothers in any way. They stated that the post was not part of an affiliate arrangement with the influencer.
They provided a copy of three separate Instagram posts created by Matthew Zorpas which they stated were marked as paid sponsored posts.
Matthew Zorpas stated that the Brooks Brothers post was an offer that Matthew shared with his followers and was not paid for by the brand.
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they made clear their commercial intent, if that was not obvious from context. In addition, marketers and publishers must make clear that advertorials were marketing communications. The ASA understood that there was a financial agreement in place between Brooks Brothers and Matthew Zorpas. Under the agreement, Matthew Zorpas was contracted to post a minimum number of stories and posts across his social media networks, as well as attending events to promote the brand and would be paid in return. We noted from the agreement that specific hashtags were to be used for each month in which content was posted and the influencer was not permitted to tag other brands in those posts. We understood that previous posts made by the influencer under the agreement included the Instagram “Paid Partnership” label and the contract also stated that for each post the influencer should use the text “advertised by brooksbrothers.unitedkingdom”. Although we acknowledged that wording was not included in the post, and that Brooks Brothers and Matthew Zorpas stated that this post was not paid for, we noted that the influencer had used the hashtags that were stipulated in the agreement for the month of March to promote the “Made to measure” campaign and the influencer had tagged the brand in the image and caption.
We concluded that various aspects of the contractual agreement between Brooks Brothers and Matthew Zorpas established that Brooks Brothers had sufficient control over the content of the post, in conjunction with a payment arrangement, for it to be considered a marketing communication falling within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that promotional activity conducted by Matthew Zorpas on Brooks Brothers’ behalf was compliant with the CAP Code.
We acknowledged that followers of Matthew Zorpas’ Instagram profile were likely to be aware that there was a commercial relationship between him and Brooks Brothers based on his previous posts. However, we understood that, because the influencer’s profile was visible to the public, any posts he published could appear in search results and those posts could be viewed in isolation to his profile. That meant Instagram users, who might not be followers of his profile, would be able to view the post. While the post differed in some respects from his usual posts and contained some elements that indicated there might be a commercial relationship between Brooks Brothers and Matthew Zorpas, we considered that the hashtags referring to the brand were insufficient to ensure that this post was obviously identifiable as an ad, both when the post was viewed in-feed and when it was viewed in its entirety once users had clicked on it, or if they had found the post in isolation following a search. We then assessed the post as it would have appeared in-feed and considered that there was nothing in its content, such as “#ad” placed upfront, that made clear to those viewing it that it was an ad. We therefore concluded that the post was therefore not obviously identifiable as a marketing communication and as such breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
The ad must not appear again in the form complained of. We told Brooks Brothers UK Ltd and Matthew Zorpas to ensure that in future, their ads were obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.