Using social media influencers for your advertising campaigns
You probably know there are rules that apply to advertising. But some people seem to think social media is a different environment where different (or no) rules apply. That’s not the case, as you’ll find out in this article.
Setting the scene
Social media is increasingly becoming a key means of advertising for many companies.
Some choose to use an influencer as part of their campaigns, depending on the size of their following and relevance to your brand. It might also be worthwhile to use an influencer if they are highly relevant, even though they have a small following.
The practice of using an influencer to advertise for you is based on the concept that their comments and feedback are seen as authentic and personal, not purchased by the brand they’re commenting on.
Over time, this ‘halo impression’ has dimmed because it’s become clear how much some social influencers earn and that this is directly related to their posts and content.
There are various ways influencers operate to promote the brands they work with. There are those who:
What does the law say?
When you use social media influencers as part of your advertising campaigns, the same rules and regulations apply to you – and them – as they do to any other form of advertising.
The two main regulators on advertising are:
The guidance from both has been remarkably consistent and includes a core set of regulations covering this style of advertising.
In addition, a raft of Consumer Protection regulations apply under the Unfair Trading Regulations 2008.
These regulations require all advertisers to be obviously identifiable as such.
Impact of failure
There are two key themes running through the guidance published by both regulators.
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The regulators can go after the brand for compliance failures and the advertiser, publisher and agency or influencer can be held responsible for breaches.
Both the CMA and the ASA are increasingly taking up cudgels of enforcement in relation to influencers’ online content.
Are you using paid-for editorial content to promote your products in the media?
A failure to communicate the commercial intention behind social media content counts as a misleading omission.
If it’s not clear to the consumer that the content is paid for or commercially acquired, that’s a prohibited practice under the regulations. Similarly, it’s prohibited to make any false claims or impressions that an influencer is acting as a consumer, not in a business or professional capacity.
The guidance states that influencers should disclose their relationship with the brand over the past year and be careful not to appear as a consumer or non-businessperson.
Financial services
If you’re in the financial services sector, there’s another serious aspect to be aware of.
In May, the FCA brought charges against nine individuals who were characterised in the press as ‘finfluencers’ who communicate promotions or give financial advice.
For example, they posted social media content about foreign exchange transactions or investments and contracts for difference. Both these are high-risk types of investment and none of the individuals concerned were authorised or regulated.
The first hearings were in Westminster Magistrates’ Court in June and July, for charges that included breaching the general prohibition against engaging in financial services activity without being authorised or regulated to do so.
The maximum penalty for the charges concerned are fines and/or two years’ imprisonment. All from a few social media posts!
What this means to you
As with any aspect of commercial or corporate law, I’m always available to help, so do give me a call on 020 3609 8764 if you’d like more information on this subject.