A post from Louise Thompson’s Instagram account, seen on 22 April 2018, captioned “sippin’ [sic] on yummy coconuts 3x size of my skull! Wearing my @danielwellington classic petite Melrose 28mm watch and matching cuff… you can get 15% off using the code ‘LOUISE’.” Above the caption was an image of Louise Thompson wearing a watch and cuff with the Daniel Wellington Instagram page tagged.
The complainant challenged whether the post was obviously identifiable as a marketing communication.
Louise Thompson said that the correct hashtag was not included and the post had since been amended.
Daniel Wellington AB explained that they had a written contract with Louise Thompson which stated that the inclusion of terms of disclosure such as “#sponsored” or “#ad” should have been used to make it directly clear that the posts were ads for Daniel Wellington. The terms of the contract stated that disclosures should have been made in the beginning of a post and above the “show more” button, if any, on the social media platform. They explained that in the caption of the post, the influencer stated her personal discount code which could be used on purchases from Daniel Wellington’s official website, and the watch and cuff had a central position in the image so that the post was dedicated to the Daniel Wellington brand. They highlighted that it was their policy to instruct collaboration partners to use the appropriate wording to make it clear that the uploaded content was advertising. They expected all of their ambassadors who had marketed Daniel Wellington products to ensure that they complied with applicable rules regarding marketing and that they took responsibility for designing their social media posts as they had agreed to.
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 noted that there was a commercial relationship between Daniel Wellington and Louise Thompson which involved a written contractual agreement, whereby Louise Thompson agreed to promote Daniel Wellington products by posting on her Instagram account and was paid in return. In conjunction with the payment arrangement between the two parties, we considered that the various aspects of the agreement between Daniel Wellington and Louise Thompson which set out the time period of posts, restrictions about other brands that could be posted about and the personalised discount code, meant that Daniel Wellington had sufficient control over the content for the post to be considered a marketing communication. Therefore, the post fell within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that promotional activity conducted by Louise Thompson on Daniel Wellington’s behalf was compliant with the CAP Code.
We understood that Daniel Wellington had stipulated hashtags to be used on the captions of the post such as “#sponsored” or “#ad”. However, we noted that they were not included in the post at the time the ad was seen. The post included the handle @danielwellington and a personalised discount code “LOUISE” for followers to get 15% off Daniel Wellington products. While the post differed in some respects from her usual posts and contained some elements that indicated there might be a commercial relationship between Louise Thompson and Daniel Wellington, we considered that the content and context of the post did not make clear that it was advertising, as opposed to, for example, genuinely independent editorial content.
Therefore, in the absence of a clear identifier, such as “#ad”, we concluded that the post was not obviously identifiable as a marketing communication and that it breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. 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. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
We told Louise Thompson and Daniel Wellington AB 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”.