Review and Update of AANA Code of Ethics
Following a public review of the existing AANA Code of Ethics, the AANA recently announced that a new advertising Code of Ethics and Practice Note will take effect from 1 February 2021. The AANA stated that the review sought to ensure that the Code of Ethics continued to meet its objective that advertising in Australia be legal, honest and reflect prevailing community standards.
The new Code of Ethics and supporting Practice Note is more extensive than the former documents and expressly imposes a positive obligation on Influencers to disclose commercial relationships in a clear, upfront manner that can be easily understood. The new Code is more consistent with the recommendations set out in the AIMCO Influencer Marketing Code of Practice released in July this year.
How to label posts by influencers
The new Practice Note provides some more useful guidance on how to label posts by influencers. In particular it states:
“Influencer and affiliate marketing often appears alongside organic/genuine user generated content and is often less obvious to the audience. Where an influencer or affiliate accepts payment of money or free products or services from a brand in exchange for them to promote that brand’s products or services, the relationship must be clear, obvious and upfront to the audience and expressed in a way that is easily understood (e.g. #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion). Less clear labels such as #sp, Spon, gifted, Affiliate, Collab, thanks to… or merely mentioning the brand name may not be sufficient to clearly distinguish the post as advertising.”
Responsibility for compliance with AANA Code of Ethics
The new Practice Note reiterates that the responsibility for developing content that is aligned to the AANA Codes falls to the advertiser (being the brand owner who has control over the relevant material and whose products or services are being promoted). This is one reason why it is so important to include relevant provisions in your commercial agreements to protect the brand, such as an obligation on the influencer to avoid making any misleading or deceptive claims in their posts and to correct any statements made that might be considered misleading or deceptive by the Brand.
Do I have to comply with the AANA Code of Ethics?
The AANA Code of Ethics applies to advertising and marketing communication where two key criteria are met. These are:
- where the marketer has a reasonable degree of control over the material; and
- where it draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct.
There are some types of marketing and communications to which the Code of Ethics does not apply, but these are unrelated to usual influencer marketing campaigns.
Whilst the new Practice Note falls short on providing further guidance on what constitutes reasonable control of the advertiser / brand, this has been discussed in some recent Ad Standards Community Panel case reports.
The Ad Standards Community Panel noted that the advertiser’s response had acknowledged that the advertisement was sponsored content and the Panel considered that the advertiser had provided a discount code for use and that there was a reasonable assumption that they had a reasonable degree of control over the content.
The Panel noted the advertiser’s response had acknowledged that the advertisement was sponsored content. The Panel noted the advertiser’s response that they had no control over Sophie Batzloff’s account and the influencer had been allowed to choose their own outfit, creative direction and caption. The Panel considered however that given a contract was in place, there was a reasonable assumption that they had a reasonable degree of control over the content.
The Panel noted that the advertiser in both of those cases had not provided a response and it was not known what kind of arrangement existed between the influencer and the brands. The Panel noted that in the case involving Runaway The Label, it had considered other posts by the same influencer and in that case the advertiser had acknowledged a commercial arrangement between the influencer and the brand. The Panel noted that the influencer was a client of an influencer management agency and that it was reasonable to assume that this post had been created as part of a commercial agreement.
What these examples tell us about your need to label sponsored Influencer content
The above recent examples highlight that the entire creative content of the influencer posts need not be scripted by the advertisers / brands in order to constitute a reasonable degree of control by the brand in the minds of the Ad Standards Community Panel. The second limb of the test, being that it draws the attention of the public in a manner calculated to promote a product or service is in most influencer marketing campaigns, quite clearly evident. It is clear that the Code of Ethics applies to most, if not all, influencer marketing campaigns targeted at Australian consumers.
Whilst the cases mentioned above were all dismissed without labelling the posts with things like #ad, the new Practice Note states that it must be applied by the Ad Standards Community Panel in making its determinations and we expect that once the new Code comes into effect in February 2021, we will see a greater emphasis placed on labelling when it comes to considering whether an influencer marketing post is clearly distinguishable as advertising.
What if I breach the Code of Ethics
You can read more about this in one of our previous Blog Posts.
How do I get an Influencer Agreement?
Now is the time to be reviewing the legal considerations when it comes to your influencer marketing campaigns and putting proper Influencer Agreements in place. You can start this process now by scheduling your own free initial consultation with us at your convenience.
For further information about legal considerations when working with Influencers, contact us.
Information contained within this blog post is intended to be general information only and is not in any way intended to constitute legal advice. You should not act or rely on any information found in this blog post without obtaining prior advice specific to your circumstances.
