More times than not, when an Australian business launches an Influencer Marketing campaign, it markets to audiences in various jurisdictions outside of Australia and may need to comply with foreign laws and regulations. Similarly, when a foreign business launches an Influencer Marketing campaign, it may market to Australian consumers and be required to comply with the laws and regulations in Australia. This is because the Influencer likely has followers all over the world who will view their sponsored content.
Due to the cross-jurisdictional nature of an influencer marketing campaign, it’s important to consider laws and regulations in other jurisdictions insofar as they relate to your intended campaign.
Some of the things to think about in general when determining which jurisdictions may need to be considered include the geographical locations in which a brand agrees to ship products and the geographical locations in which the social media followers of the influencer (and the brand) are located.
Here we discuss some of the disclosure requirements for influencer marketing campaigns targeted at consumers in Australia, the USA and the UK.
Disclosure Requirements for Influencer Marketing Campaigns in Australia
Starting on home soil, some of the key requirements and resources you should familiarise yourself with include:
- The Australian Association of National Advertisers (AANA) Code of Ethics (Code)
Particularly section 2.7 of the Code, which requires advertising and marketing communication to be clearly distinguishable as such. This section of the Code effectively requires you to make your influencer marketing campaign clear to followers that it is a paid collaboration. The Practice Note for the Code of Ethics provides that “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.” Complaints for a breach of the Code can be made by anyone to Ad Standards, who will investigate and reach a finding together any recommendations for changes or removal.
The ACCC’s primary responsibility is to ensure that individuals and businesses comply with Australian competition, fair trading and consumer protection laws, including those set out in the Australian Consumer Law. The ACCC can require that any claims on social media pages be substantiated and commence proceedings where a breach of the law has been identified.
- The AIMCO Influencer Marketing Code of Practice
The AIMCO Influencer Marketing Code of Practice provides guidance to any business engaging in influencer marketing. The areas covered in the Code include:
- Transparency regarding influencer vetting practices;
- Brand safety considerations;
- Advertising disclosure requirements under Australian Consumer Law;
- Ensuring appropriate briefs and contracts;
- Importance of including content rights/IP within contracts; and
- Metrics and reporting transparency.
Disclosure Requirements for Influencer Marketing Campaigns in the United States of America
In the U.S., the Federal Trade Commission (FTC) is the relevant body to look to for guidance on advertising disclosure during influencer marketing campaigns. The FTC works to stop deceptive ads.
Australian brands promoting through Influencers should be aware that U.S. law applies if it’s reasonably foreseeable that the post will affect U.S. consumers. As mentioned above, this might be through the U.S. consumers being able to purchase products from the brand. With many Australian businesses now shipping to the U.S., this is something to always keep in mind.
To meet U.S. requirements, an Influencer must disclose when they have any financial (being anything of value for posting for the brand), employment, personal, or family relationship with a brand. Note that an Influencer does not have to state that they do not have a brand relationship if they post about a product they purchased and are choosing to review of their own accord.
The disclosure must be hard to miss and should be placed with the endorsement message itself. Do not only include them in the account bio or at the end of posts or videos or mixed into a group of hashtags or comments.
Different types of content placed in different locations have different requirements in relation to how to appropriately disclose. For example, a picture posted to stories may require disclosure to be superimposed over the image, a video should include both a verbal and written disclosure. Live video may require disclosure to be repeated to ensure it is made known to viewers who only view part of the live stream.
For more information on compliance with the U.S. requirements, the FTC have released some useful guidance which you can view including:
Disclosure Requirements for Influencer Marketing Campaigns in the United Kingdom
In the UK, the relevant bodies to look to for guidance on advertising disclosure during influencer marketing campaigns include:
The CMA is the UK’s primary competition and consumer authority and is an independent non-ministerial government department with responsibility for carrying out investigations into mergers, markets and the regulated industries and enforcing competition and consumer law.
The ASA is the UK’s advertising regulator. The ASA makes sure ads across the UK media stick to the advertising rules (the Ad Codes).
CAP’s members represent advertisers, media owners and agencies, and is responsible for writing the Ad Codes.
The regulations to be aware of in relation to influencer marketing in the UK include the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).
The CAP Code, which is enforced by the ASA, applies to most forms of influencer marketing. Some particular sections to note are Section 2, which contains rules about how ads should be recognisable as ads and Section 3, which sets out rules that advertisers must follow to avoid misleading people.
Similar to the Australian Consumer Law enforced by the ACCC in Australia, the Consumer protection legislation, enforced by the CMA in the UK, also applies to influencer marketing. It contains similar prohibitions against promoting products without making it clearly identifiable to the consumer that it’s a paid promotion.
Similar to the position in Australia and in the U.S., whenever an Influencer receives a payment from a brand, they will need to disclose this in any relevant posts. Any sponsored posts promoting or endorsing the brand or its products or services are subject to consumer protection law. Payment in the UK means any form of monetary payment, commission, a free loan of a product or service, a free product or service (whether requested or received out of the blue) or any other incentive.
Both the brand and any agents involved in creating or publishing the content are responsible for ensuring that the sponsored nature of the post is clear. If it is not obvious from the context that the post is an ad then a clear and prominent disclosure will be required. As an absolute minimum a sponsored post should include a prominent disclosure label. The preferred wording to use as the disclosure label in the UK is Ad, Advert, Advertising, Advertisement or Advertisement Feature, all of which can be used with or without a hashtag, but should be used upfront.
You can view more information about compliance with UK requirements by clicking the following links:
Final thoughts on cross-border influencer marketing disclosure requirements
As you can see from these three major markets, the consensus is that sponsored posts should be clear and almost impossible to miss.
Before launching your next influencer marketing campaign, you should consider where the consumers targeted through the campaign might be located and decide on the most appropriate forms of disclosure based on the location of those consumers and the type and placement of the content intended to be created.
For advice on disclosure requirements for your next influencer marketing campaign, contact us.
Contact us to discuss your disclosure requirements for Influencer Marketing Campaigns
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.
