Blake Morgan take a close look at Social Media and the use of influencers

In a time when the world is still adjusting to the changes brought about by the coronavirus outbreak, businesses are still facing many challenges and having to adapt to a new world in which keeping your distance is key.

Blake Morgan Senior Solicitor, Nicola Rochon, takes a close look at influencer marketing, and what businesses need to consider to comply with UK consumer and advertising laws.

One of the challenges this creates for businesses is, with people staying home more than ever before, how can a brand target new customers and continue to engage its existing customers in new products? With more people staying at home and using technology, not just for work, but also for connecting with friends and family, it is no surprise that many brands are recognising that their online presence on social media platforms such as Facebook, YouTube, Instagram, Twitter, Snapchat, Pinterest and TikTok, is crucial in overcoming this challenge.

Online marketing comes in many different forms, but over the last five years 'influencer marketing' has developed into one of the most effective. Influencers are not like the traditional celebrity - they can be anyone with a large following on the web or social media and many influencers produce their own content from home. In particular recently, when many brands have been unable to hold commercial photoshoots or video campaigns, influencer marketing has become an invaluable tool.

However, influencer marketing does not come without its restrictions, and whether you are an influencer working with a brand, or a brand using influencers for promoting your products, it is important that you ensure that your marketing practices always comply with UK consumer protection law and the Committee of Advertising Practice's advertising rules. To help ensure you are always compliant – we have set out some helpful tips below.

Top tips for compliant influencer marketing

1. Influencers must disclose any form of payment, free product or any other incentive relationship it has with a brand.

This captures a wide range of commercial arrangements, not just the traditional payment for advertising, including:

• if an influencer was sent a product for free and then shares a post promoting that product or simply thanking the brand for the product;
• if an influencer has been gifted a trip or accommodation for free in return for posting about the service;
• if a social media post promoting a product or service contains a link or discount code that directs commission to the influencer;
• if a brand has paid an influencer to post about a particular product and as a result the brand has final sign off on the wording of the post or image to be posted; orif the influencer has entered into a commercial relationship with a brand as an ambassador in which they receive payment for including key messaging in their social media posts.

2. Make the disclosure clear and prominent.

Many influencers now use an "Ad" label on their social media posts, the type of label that is available will vary depending on the social media platform being used. The Advertising Standards Agency (ASA) consider this use of an "Ad" label to be the absolute minimum action that a brand or influencer should take. Guidance from the ASA suggests that disclosures such as "Ad" labels should be prominent and always shown at the beginning of a post. It should be very clear that the post is an advert before the customer has clicked or engaged with the post. It is not acceptable to disclose that a post is an advert at the end of a post, or in the caption of a post that can only be seen once a consumer has clicked "see more".

3. Make the disclosure unambiguous and unmissable.

Using popular hashtags such as #gifted #spon #sp #Af #Affilliate may not be understood by all consumers. Instead opt for unambiguous and well known terms such as #Ad #Advert #Advertisement or a "Paid partnership" label. In addition, when designing posts, brands and influencers should consider how the post will look on different devices to ensure that the disclosure will not be hidden by wording or buttons when looking at it using different devices or applications.

4. Carefully manage your commercial relationship.

If your brand is using influencers for marketing purposes, make sure you keep records of any free products or incentives provided to the influencer, provide clear guidance on what you require from the influencer to ensure compliance with advertising standards, and remain vigilant when monitoring their posts to ensure they are consistently and clearly disclosing their commercial relationship. You must never ask an influencer to not disclose the commercial relationship it has with your brand.

If you would like further information on the Committee of Advertising Practice's advertising rules or have questions regarding IP and protecting your brand please contact Blake Morgan’s Intellectual Property Team

Blake Morgan LLP is a UK law firm with offices in: Cardiff | London | Oxford | Reading | Southampton

www.blakemorgan.co.uk