An Instagram post on TV personality Molly Mae Hague’s page, @mollymaehague, seen on 26 September 2019, featured an image of Molly Mae wearing a coat, with the caption below the image “A/W, I’m ready [brown leaf emoji]”. The official Instagram account for Pretty Little Thing, @prettylittlething, was also tagged in the image.
The complainant challenged whether the post was obviously identifiable as a marketing communication.
Prettylittlething.com Ltd confirmed that Ms Hague was a brand ambassador for Pretty Little Thing (PLT) and, in accordance with her contract, any advertising services for PLT had to be obviously identifiable to the consumer. They believed that influencers used their own knowledge and authority to engage with their audience. They said that influencers used Instagram for various reasons, such as marketing, building social relationships and engaging with people by sharing aspects of their lives.
Prettylittlething.com Ltd did not provide the ASA with a copy of their commercial contract with Ms Hague, but stated it stipulated that Instagram posts made under their commercial relationship should be identified by a tag to the @prettylittlething Instagram account, include a mention of @prettylittlething and be tagged as a “paid partnership with prettylittlething”. They said that the post was an ‘organic’ feed post, was not part of their contractual agreement and was outside its scope. They said that Ms Hague had made the post because she liked the outfit and had therefore tagged @prettylittlething. They provided some examples of similar ‘organic’ feed posts created by Ms Hague which they said were posted prior to the contractual agreement between PLT and Ms Hague and demonstrated that she had a genuine interest in the PLT brand.
Prettylittlething.com maintained that they did not have any prior knowledge that the post would be posted or that they had any control over it. Ms Hague, via her agent, reiterated that the post was not an ad but an organic feed post and she had tagged @prettylittlething in the post as she was wearing one of their products.
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 Prettylittlething.com Ltd and Molly-Mae Hague under which she would be a Brand Ambassador for Prettylittlething.com Ltd.
We noted that Ms Hague identified herself as the PLT Brand Ambassador in her Instagram bio and, under the agreement, Ms Hague was contracted to post photos on Instagram wearing clothing from PLT. We noted that PLT had argued that the post complained about was not advertising because it did not arise from Ms Hague’s contractual obligations as a brand ambassador. We asked PLT to provide a copy of their contract with Ms Hague so that we could make a full assessment of the nature and limits of her obligations under that agreement. However, PLT did not provide it. Because Ms Hague had a financial relationship with PLT as their brand ambassador and because the post featured her wearing a PLT product which was also tagged to PLT’s Instagram account we considered that PLT had a level of control of the post that was sufficient for it to fall within the remit of the CAP Code.
We noted that at the time the ad was seen, the ‘bio’ field on Ms Hague’s Instagram profile stated “Ambassador @prettylittlething”. Because of that, we acknowledged that those who had chosen to follow Ms Hague’s Instagram account since that text had been included on her Instagram profile might be aware that there was a commercial relationship between Ms Hague and PLT. However we considered that text in an Instagram bio, which was only likely to be seen a limited number of times by followers and not when people were viewing individual posts was of limited effectiveness in disclosing that posts were advertising. In addition, we understood that, because Ms Hague’s profile was visible to the public, any posts she published could appear in search results and those posts could be viewed in isolation to her profile. That meant Instagram users, who might not be followers of Ms Hague’s profile, would be able to view the post without having seen her profile and the statement about her brand ambassadorship.
For all of those reasons, we considered that the post itself would need to be obviously identifiable as a marketing communication. We did not consider that the post contained any obvious indications of a commercial relationship. The post referred to Ms Hague’s being ready for ‘A/W’, which we understood to be an abbreviation for an ‘Autumn/Winter’ fashion collection. We noted that Ms Hague tagged @prettylittlething to the image, but we did not consider the content of the post made clear whether 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.
We considered the post was therefore not obviously identifiable as a marketing communication and as such breached the Code. The ad breached CAP Code (Edition 12) rule 2.1, 2.3 and 2.4 (Recognition of marketing communications).
The ad must not appear in the form complained of. We told Prettylittlething.com Ltd and Molly-Mae Hague to ensure that their ads were obviously identifiable as marketing communications, for example by including a clear and prominent identifier such as #ad.