No sooner had everyone returned to work for the start of a new year and, in fact, the start of a new decade, but the Advertising Standards Authority had issued a new ruling about an influencer post that did little to clarify what should – and doesn’t need to be – identified as an advertisement.
In this ruling – number A19-1035979 – the ASA upheld a single complaint that an Instagram post by Molly-Mae Hague, in which she tagged Pretty Little Thing, a retailer that sponsors her, should have been tagged as an advertisement. You can read more here.
What The ASA Said
In the report on the ASA website, they set out the nature of the complaint;
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 essence of the complaint was whether the post was obviously identifiable as a marketing communication. It is interesting that the language of the complaint is different to the finding – ‘marketing communication’ vs. ‘advertisement’. But the sense is pretty clear.
What Pretty Little Things and Molly Mae Hague Said
In its defence, Pretty Little Thing (PLT) said that because Molly Mae Hague had a contract to post a certain amount for the company but that the post complained about was not part of the agreement. It was simply that Molly loved the coat and wanted to tell her followers. The post was, according to PLT, organic.
They [PLT] 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.
In addition, the ASA confirmed that;
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.
What This Means For Other Brands
Once again, the ASA has issued a ruling that seems to muddy the waters rather than providing clarity (although I’m sure for them the opposite is true). What is difficult to understand is that the ASA says that;
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
But that is not enough, apparently. The ASA argues that someone viewing the post might not see Molly’s bio and so not be aware of the relationship. The ASA also argues that ‘any posts she [Molly] published could appear in search results and those posts could be viewed in isolation to her profile’. Finally the ASA also reject the idea out of hand that Molly is capable of posting organically about PLT.
One area of concern here is that this ruling could mean that every post anyone linked to a brand publishes, tagging that brand, needs to be tagged as an advert.
What does this mean for an athlete? I think everyone is aware that Eliud Kopchoge is a Nike athlete. Generally he doesn’t use #ad or #sponsored in everything he posts, despite tagging Nike in many of his posts. Is that in breach of the rules?
Or what about the CEO of a business that posts about the product the company he leads produces and tags the company? Does that fall under the same rules?
The Fall Out From This Ruling
In the immediate term, PLT and Molly have been given a slap on the wrist and told that all future posts must be tagged as #ads.
We think this does not really help the industry. For example, it is possible (even probable) that brands will start to worry, especially if their agreements with ambassadors state that there is no specific requirement to post which means that either all posts are organic or that none of them are … so more confusion there.
We also think that brand ambassadors are going to be confused. If they are sponsored by a brand and train and compete in their gear, they should they not tag the brand? Or if they do tag the brand, does that automatically make the post an advertisement? In which case, won’t they simply refrain from tagging the brand and instead just make sure that huge and clearly identifiable logos appear in the post?
And finally, what is the difference between an advertisement and marketing communications? In the ruling the ASA states that ‘The ad must not appear in the form complained of’ but then ‘We told Prettylittlething.com Ltd and Molly-Mae Hague to ensure that their ads were obviously identifiable as marketing communications’. It is not clear what else falls under the banner of marketing communication and that could cause even more confusion.
All in all, we think that once again the ASA has created less clarity. We guess we’ll just have to see how everyone reacts to this, because it’s a certainty that influencers, content creators and ambassadors will continue to work with brands. It just might be that they have to think about how they do that within the rules that the ASA is developing.
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