On 23 March 2023, the Committee of Advertising Practice (CAP) published its updated Influencers guide. Its aim is to ensure that influencers who are engaged in non-broadcast marketing activities (for brands, or even their own products) understand the rules that apply to them, and that they are aware of what would be considered “best practice”. This marks the third instalment of the influencer guide, which has been updated to take into account several ASA rulings, feedback from key industry stakeholders, and work by the Competition and Marketing Authority (CMA) in this area.

The advertisement sector is regulated by the Advertising Standards Authority (ASA), who uphold the rules and codes that relate to advertising within the UK. Non-compliance can lead to the ASA imposing sanctions, such as fines, and repeated breaches of the CAP codes / influencer code may also lead to an influencer being placed on a list of non-complaint social media influencers. This can lead to enhanced monitoring and negative publicity, which may affect an influencer’s ability to secure further deals with brands.

It is therefore important that influencers comply with their legal obligations.

What Does the Updated Guidance Say?

Influencers are under a duty to ensure that consumers can clearly identify when they are viewing content that constitutes or includes advertising. This is reflected in both the CAP code and the Consumer Protection from Unfair Trading Regulations 2008, both of which require that advertising is clearly brought to consumers attention. With regards to social media advertising, this is seen as particularly important as the lines as to what is/isn’t an advertisement can often be blurred.

The updated influencer guide generally focusses on (amongst other things):

• Expanding the understanding of the concept of an “influencer”, which is now deemed to include “any human, animal or virtually produced persona (bloggers, streamers, celebrities, content creators etc) that are active on any social media platform, such as Facebook, Instagram, Snapchat, TikTok, Twitch, YouTube and others”. This will of course be of particular interest to those involved in marketing on newly popular platforms such as TikTok, and also for streamers on websites such as Twitch, both of which are captured by the scope of the influencer marketing guide. It may also be relevant to those who use pets to market/advertise products or services.

• Confirming that where any sort of incentive is received from a brand, whether requested or unsolicited, any relevant content posted to social media platforms will need to make clear that it is an advertisement. The term incentive encompasses being a brand ambassador, shareholder, director and collaborator, but is also defined so as to include not only money, but also things such as free products (video game keys, makeup etc.), discounts, commissions, services or other types of incentives (hotel stays, event invites etc.). There are also rules that specify if a brand that you are promoting is owned by a family member or friend, you also need to clearly disclose that the content posted is advertising. This is something that will be of particular interest to Twitch streamers, many of whom receive incentives such as video game codes and the like from developers/publishers to play their games live to virtual audiences. These types of incentives would now fall within the scope of the influencer guide, and this is particularly interesting given that influencers are required under the guide to disclose that the content of the stream whilst playing that game is technically an advertisement. This requirement is deemed to continue for a period of 12 months after receipt of the incentive, and this would mean that Twitch streamers need to take steps to ensure, for a period of 12 months, that their viewers are notified of the advertisement every time they play a game on stream which has been received for free. The influencer guidance states that people should be able to immediately recognise when content is advertising, without having to click or interact with the content. Twitch streamers will need to be wary of this update and should consider suitable methods that allow for viewers to immediately identify the advertisement at any time throughout the stream (perhaps through banners/graphics overlaying the screen, or by simply including wording that clearly shows that this is the case at the beginning of the stream title).

• Confirmation that if an influencer is promoting their own products or services on their own personal channels, they still need to ensure that their audience can recognise upfront that it is an advertisement for those products/services. This will be of particular interest to those who are involved in creating and marketing their own lines of products, which is becoming increasingly popular, not least amongst YouTube bloggers and the like. Video game developers should also be wary that playing their own games on streaming sites such as Twitch would be deemed an advertisement of their own products, and as such they should also take steps to ensure compliance with the influencer code by clearly labelling the stream as an advertisement.

• Further clarification on what hashtag disclosures are/are not acceptable, and clearer visuals on what a properly disclosed post should use (particularly in relation to TikTok). The code makes clear that hashtags or labels that don’t explicitly label content as advertisements will not be good enough. They have recommended that influencers do not use labels such as (amongst others) #myedit/collection #gift/gifted #sponsored and #thanks to/made possible by. The code recommends use of #ad or #advert as this is clearly understandable and makes it obvious from the outset that the content is an advertisement. Helpfully, some graphics are provided in the influencer guide that set out what a compliant approach would look like across various platforms.

Impact On Influencers

Ultimately, brands that engage influencers to promote or advertise their brands retain a degree of responsibility for ensuring that content posted by influencers they are associated with is being properly disclosed to consumers as an advertisement. Usually, brands that engage influencers will want assurances in their contracts that the influencers will adhere to the influencer code and the CAP code. Failure to adhere to the code and other contractual provisions may, in the most severe of cases, lead to termination of the agreement with the brand (and this will of course lead to loss of income/revenue for the influencer).

It is therefore hugely important that influencers keep up to date with any changes to the influencer code, to ensure that they remain compliant.

Another sanction influencers can face is being placed on a list of non-compliant social media influencers. This is of course publicly available, and breaches of the influencer guides and CAP codes that result in being included on this list may affect an influencer’s reputation.

Damage to an influencer’s reputation is massively concerning, as this will impact on their ability to secure further deals with brands.

How We Can Help

At Eaton Smith, we understand that as an influencer, getting the right deals and maintaining your image is your priority. We can assist influencers in the following ways:

• Reviewing, advising and negotiating any contract you may have received from a brand, to ensure that you are aware of your obligations under that contract (with regard to, for example, target metrics) and that the agreement is suitable for your needs (and it is what you expected it to be).

• Advising on compliance with the influencer guide and CAP codes, not just in relation to disclosure of content as advertisements, but also in relation to other codes (such as the CAP codes on advertising age-restricted products like alcohol, running giveaways and prize draws, etc).

If you are an influencer and need any assistance with a contract you have been presented with, or need any assistance generally, please contact me at JohnCotterill@EatonSmith.co.uk.

This is not legal advice; it is intended to provide information of general interest about current legal issues. You should specific legal advice before acting in reliance on any of the information provided.