Content creators: When do you have to tell your audience you are in brand partnerships?*
We believe that influencer marketing is one of the most effective authentic ways for brands to reach their audiences. We love working with content creators who everyday demonstrate creativity in their content and passion for their sports. At Freestak, we want to ensure our whole community of influencers, brands and partner agencies understand best practice in influencer marketing – and are aware of their obligations to abide by the regulations. It can feel like difficult territory, legal jargon and multiple bodies to decipher their rules. We want to help make sure you are fully informed and can stick to focusing on what you love: creating engaging creative content for your audiences.
Influencer marketing is covered by both the CAP Code* and consumer protection legislation. Content posted by influencers must abide by both sets of regulations, and here are our key takeaways on what applies to content creators.
Influencers Obligations: when do they apply?
The summary of the below is that if you have received payment (be it financial, product or service etc.) in return for content, you need to make it clear to your followers that you have a sponsored relationship with the brand.
The CAP Code* only applies to ads, so it’s important to understand when a social media post crosses the line into becoming an ad. There are 2 qualifiers. Both must apply for a post to become an ad (and therefore require disclosure).
- Firstly, the rules apply if you have received any payment for the post. Payment is not just monetary – but covers any product, gift, service, trip etc. So, it will apply to any campaign we run on the Freestak platform where you receive something in return, most likely product, but also travel, money etc.
- Secondly, the brand must have some form of ‘editorial control’ over the post. The easiest way to translate this is by asking, ”Can I post totally freely? Say whatever I want, whenever I want, post any amount of times or not post at all?” If the answer is no, then the brand has some form of editorial control. With Freestak campaigns we like our content creators to have as much freedom as possible as we know that authentic content is what you do best, and creativity needs freedom. That said, the majority of our campaigns will ask for a certain number of posts, use of hashtag, maybe shots including product or posts in a certain time period. If you receive a campaign brief with any of this type of information included, then this is considered ‘editorial control’ and the CAP Code rules apply.
If you are doing a campaign through the Freestak platform, it is most likely both of these apply. If you are doing other brand collaborations and are unsure, ask yourself the questions above to check whether you need to signify to your followers this is promotional content.
The CMA* enforces consumer protection legislation, which unlike CAP* only requires payment for a post to require clear disclosure. Therefore, any posts which are promoting a product that you have received for free or received payment for should make clear that they have been paid-for.
What does ‘clear disclosure’ look like?
The most commonly known and used indicator is to include #ad/ #advertorial/ #promo at the end of the post text. However, the CMA* state it must be obviously identifiable as brand promoted content, without audiences having to engage with it. Therefore, placing #ad at the bottom or in the middle of a multitude of #’s is not compliant. This would require audiences to scroll and read the post, thus engaging with it.
Here are the 3 ways we suggest you could let your audience know you are working with brands that comply with the CAP Code* and consumer protection legislation:
- Begin the post with one of the following #’s: #ad, #advertorial #advert #promotionalcontent. Note: According to the latest guidelines, #spon is not clear enough if there has been editorial control.
- Begin the post stating what you are doing: ‘I am a @ brand ambassador’, ‘This is promotional content’, ‘this is a sponsored product review’, ‘I received this as a gift and am working with @, but the opinions are entirely my own’. Again, according to the guide just thanking @ brand is not clear enough.
- Use the paid partnership feature in Instagram or other social channels – but remember to also include a disclosure message. Neither CAP nor the CMA have said it’s acceptable to rely on a paid partnership feature so it’s best to include one of the indicators outlined in points 1 and 2, above.
We would love to hear your suggestions of how else you can let your audiences know about your partnerships, whilst still creating engaging authentic content. Please comment below, tweet us @freestakuk or email email@example.com.
If you are a brand ambassador and feature product you received for free/been paid for and have been asked to post, make clear in your bio that you are a brand ambassador, and that therefore most of your content will be brand associated. We understand starting every post declaring you are in collaboration is difficult, however if you are promoting products that you received for free and have been instructed on posting about them, you need to make this obvious to your audience in every post that features the brand’s products or messages.
Who is responsible?
The short answer is everyone involved. The influencer posting content has an obligation to their audiences to ensure they know the content is promotional material. Influencers can be investigated by the ASA and CMA for non-compliance. But the brand and any intermediary agency is responsible too. We want to make sure you are fully aware of the best way to work with brands. Any investigation into an influencer causes investigation into brands and agencies such as Freestak. So, if you are working on behalf of a brand, it is important to remember your responsibility to ensure that your posts are compliant.
What happens if you don’t comply?
We do our best to stay up to date with new rules and guidelines. This can sometimes be frustrating as we see that many brands, influencers and agencies are not complying and there are no consequences, so why should we? We believe in the power of influencer marketing because it is authentic. We want to work with brands and influencers who hold the same values, who want to inspire audiences to get outside, and be truthful and genuine in our storytelling. This is enough of a reason for us to comply.
Aside from this, if the ASA* is alerted to any posts that do not make clear they are advertorial content, then it is likely to investigate. The ASA would consider the post against the current rules, publish a detailed ruling on it’s website (influencer rulings frequently get picked up by the national press) and then ask for the post to be removed or amended. If you refuse to comply or take too long to make the changes, you, the brand and the agency can be sanctioned. The ASA* publishes its rulings every Wednesday and also gives brief information on those cases that are informally resolved. The CMA* usually only takes action on a larger scale e.g. if a social media agency is putting out lots of undisclosed content. It has the ability to refer cases for court action with the prospect of significant financial penalties or even imprisonment.
What does this mean for Influencer marketing?
In theory, it shouldn’t change much. These laws have been in place since before the advent of social media, but not always followed. They are however starting to focus on it more and more. If you are in London you may have noticed the ASA have started communicating that they are investigating more social media through adverts on the tube. We want to encourage best practice with both our community, our clients and ourselves, and focus on ensuring this is the case in all our campaigns. If you need more information on how to make the necessary changes, you can read the full guide here – which was the basis of information for this post.
You can also use the handy Bird & Bird Digital Marketing Law app, available from iTunes, Google Play and Windows, which provides guidance on different rules in different territories.
We would love to hear your thoughts on how to best put compliance into action, and any feedback and suggestions.
This article has been co-written by Rupa Shah, Influencer Marketing Regulatory Consultant, and Georgia Brookes, Freestak Account Manager.
ASA = Advertising Standards Authority – This is the UK advertising regulator. They respond to consumer and competitor complaints, check that ads are compliant and publish rulings for those that are not.
CAP Code = Committees of Advertising Practice Code – This is the official rule book, the Code that covers influencer market regulations, and is enforced by the ASA.
CMA = Competition and Markets Authority – Impartial government department responsible for enforcing consumer protection legislation, which covers influencer marketing.
 The FTC (USA regulatory body) have stated that this is not sufficiently clear disclosure and, because the ASA has not ruled on the matter, current best practice advice is not to rely on paid partnership alone; always add a disclosure message. We have been advised this may change as a result of ASA’s project into influencer disclosure, to be published in April.
 The CMA announced in January 2019 that they’ve investigated 16 high-profile influencers for non-disclosure. They are not taking further action as all 16 have agreed to change their posts. https://www.bbc.co.uk/news/technology-46960179
*all information is based on UK law and CAP guidance but is for informational purposes only and does not constitute legal advice. We recommend contacting CAP/ASA to obtain advice with respect to any particular CAP Code issue/ASA investigation. If you are working in partnership with a UK brand or agency, UK law and the CAP Code applies. If all of your relationship is outside of UK law please seek further specialist legal advice.
Nice summary, folks. Thanks for putting this together.