On 1 February 2021, a new AANA Code of Ethics and Practice Note came into effect. The significance of this is that a positive obligation is now placed on influencers and brands to disclose commercial relationships in a clear, upfront manner. Consumer complaints made after 1 February 2021 in relation to a failure to disclose a sponsored post will now be considered by the Ad Standards Community Panel with reference to this positive obligation.
Who is the AANA?
The Australian Association of National Advertisers (AANA) is the peak national body championing the interests of Australia’s advertisers. They state that they exist to inspire and promote responsible, innovative and respected marketing, through a commitment to sustainable industry collaboration. The AANA Code of Ethics is its core self-regulatory code and provides the overarching set of principles with which all advertising and marketing communications are expected to comply, including influencer marketing.
Who is Ad Standards?
Ad Standards manages the complaint resolution process of the advertising self-regulation system in Australia, including managing complaints in relation to alleged breaches of the AANA Code of Ethics. If a consumer suspects a breach of the AANA Code of Ethics, they can lodge a complaint with Ad Standards and the Ad Standards Community Panel may investigate that complaint and determine whether the complaint should be dismissed or upheld. You can view the full complaints process here.
What should a brand and an influencer do if a complaint is made to Ad Standards about their campaign?
If a complaint is made about a failure to disclose a sponsored post in relation to an influencer marketing campaign, Ad Standards will notify the brand about the complaint, provide the brand with a copy of the complaint and request a written response together with copies of the relevant posts.
Brands should prepare a response to Ad Standards and deliver that response to Ad Standards within the time requested. We recommend seeking expert legal advice in relation to this response before submitting it.
It’s important to note that failing to respond to a request may result in a determination being made on certain assumptions which may or may not actually be correct. For example, in this case, an assumption was made that the influencer was a client of an influencer management agency and that it was reasonable to assume that the post in question had been created as part of a commercial agreement.
How to avoid consumer complaints in the first place
Understanding the requirements when it comes to disclosure of sponsored posts on social media is the first step. Where possible, the branded content tools on the social media platforms should be used to disclose the sponsored nature of the posts. Using those branded content tools is also required in most cases under the terms of service for the platform, such as on Instagram.
Adding clear and upfront hashtags such as #ad or #advertisement is also recommended to ensure that the sponsored nature of the post is properly disclosed.
The new AANA Code of Ethics Section 2.7 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). It is therefore important to include relevant provisions in your influencer agreements to protect the brand from the influencer’s actions which may otherwise be outside of the brand’s control, such as an obligation to disclose the sponsored nature of the posts as set out above. It is also important to proactively monitor the influencer’s posts as they go live and request that they immediately correct any failure to disclose the sponsored nature of the post where appropriate.
Where to find further information and guidance
The Australian Influencer Marketing Council (AIMCO) released the Australian Influencer Marketing Code of Practice on 1 July 2020. This document provides a wealth of knowledge and useful tips on how to properly disclose the sponsored nature of a post on various platforms and in relation to various content formats.
How to protect yourself with Influencer Agreements
You can schedule your own free initial consultation with us at your convenience to begin the process of creating an influencer agreement that’s customised to your intended campaign and that provides you with a high level of protection.
Contact us to discuss any complaints about sponsored posts on social media
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.
