An Instagram post for Missguided on Zara McDermott’s page, seen on 13 January 2021, featured an image of Zara McDermott in gym wear, alongside a long caption that stated “GUYS!!! Drop 2 of my @missguided edit is HERE!!!!. Even more styles, some different fabrics, and some new colours to add to the edit! Check out the Missguided website now!”.
IssueThe complainants challenged whether the post was obviously identifiable as a marketing communication.
Missguided Ltd said that they had a contractual agreement in place with Ms McDermott and that the Instagram post had formed part of that agreement. A content brief was provided to Ms McDermott, but the ultimate caption was not signed off by Missguided. They said that they felt the post was obviously identifiable as a marketing communication, when viewed in the context of the Missguided-related posts on Ms McDermott’s account before and after the post under investigation. They accepted the post had not been correctly labelled as an ad and said that they had put measures in place to ensure future marketing communications were labelled appropriately and future captions were signed-off before being posted.
Zara McDermott's agent said that the omission of ad labels had been a mistake on Ms McDermott’s part. The caption had been amended to include an ad label.
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 there was a commercial relationship between Missguided and Ms McDermott which involved a contractual agreement that covered the post under investigation and that, as part of that agreement, Ms McDermott was provided with a brief detailing the content of any resulting posts. We therefore understood that the relevant post fell within the remit of the CAP Code and that both parties were jointly responsible for ensuring that promotional activity conducted by Ms McDermott on Missguided’s behalf was compliant with the CAP Code.
We acknowledged Missguided’s assertion that followers of Ms McDermott’s Instagram account were likely to be aware that there was a commercial relationship between her and Missguided based on her previous and subsequent posts. However, we understood that, because Ms McDermott’s profile was visible to the public, any posts she published could appear in search results and those posts could be viewed in isolation from her profile. That meant Instagram users who were not followers of Ms McDermott’s profile would be able to view the post.
We noted that the post caption stated “my @missguided edit” and “Check out the Missguided website now!”, which we considered might suggest that there was a commercial relationship between Missguided and Ms McDermott. We understood that Ms McDermott’s “edit” referred to her curation of a range of items on Missguided’s website. We considered that while some of Ms McDermott’s followers would be familiar with that terminology, not all would understand it as a reference to the commercial relationship between the parties. We noted that Ms McDermott had said the post would be amended to include the identifier “#ad”. However, because, at the time of the complaint, the post did not include such an identifier, we considered that it was not obviously identifiable as a marketing communication and therefore concluded that it breached the Code.
The ad breached CAP Code (Edition 12) rule 2.1 2.1 Marketing communications must be obviously identifiable as such. (Recognition of marketing communications).
The ad must not appear again in the form complained about. We told Missguided Ltd and Zara McDermott to ensure that ads were obviously identifiable as marketing communications in future. For example, by including a clear identifier such as “#ad”.