Occasionally an influencer will work with a brand on a campaign and they will be gifted a bunch of products. Following the conclusion of the campaign, the influencer will sometimes continue to display those products to their audience such that the brand will continue to gain additional promotion outside of the initial campaign. But are these bonus posts still an ad by the brand, and should influencers be disclosing commercial relationships with the brand when uploading these posts? We look at two recent cases determined by the Ad Standards Community Panel regarding the same brand that sheds some light on this issue. The determinations might surprise you.
What happened?
According to the case reports, the posts in question were made by influencer, @myfriendelias, in relation to products by ORTC clothing. The posts became the subject of what appears to be two separate complaints, determined in two separate case reports.
In relation to the first complaint, ORTC clothing confirmed that a commercial relationship existed between the brand and the influencer. The Panel found that the post did amount to advertising for which the brand had a reasonable degree of control. Whilst the influencer updated the post following the complaint to use the branded content tool and added a #ad to the post, the Panel determined that the wording of the original post was not clearly distinguishable as advertising and upheld the complaint.
In relation to the second complaint, the Panel considered that the advertiser had not been tagged in the photo or the comments. The Panel noted that the brand name was clearly visible on the shorts worn by the influencer in the post. The Panel considered that the image appeared as though the influencer was modelling the shorts and in combination with the clearly visible brand name, this would draw the attention of the public in a manner calculated to promote the brand and product.
In the case report, the Panel noted that it was not known whether the photo shoot the subject of the second complaint had been a part of the initial commercial arrangement, or whether the advertiser had provided the shorts to the influencer for free.
Was the post the subject of the second complaint also an ad?
For the relevant section of the Code of Ethics to apply, the post would need to be determined to be an advertisement for the brand.
Ad Standards consider advertising to mean: “any advertising, marketing communication or material which is published or broadcast using any medium or any activity which is undertaken by, or on behalf of an advertiser or marketer:
- over which the advertiser or marketer has a reasonable degree of control; and
- that 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”.
Having determined that the post drew the attention of the public in a manner calculated to promote the brand and product, the question of whether the brand had a reasonable degree of control then needed to be determined. In this regard, the Panel noted that:
“The Code does not define ‘reasonable degree of control’. The Panel noted that there is no indication of timeframes around which the advertiser can be seen to exert control. The Panel noted that in the case of gifts to influencers the context in which the product is given cannot be ignored. The Panel noted that influencers operate as an advertising medium utilised by businesses to promote their brands and products. The Panel noted that many influencers have agents and that businesses exist which put brands and influencers in touch with each other. The Panel noted that influencers are sometimes paid, sometimes provided with free product and sometimes post about products in the context of longer-term relationships without immediate incentive. The Panel noted that influencers’ posts may also be created in circumstances in which there is no relationship context. The Panel considered that the Code’s requirements should be interpreted with its purpose in mind, that is to ensure that consumers are informed, and that influencers should be transparent about their relationship with a brand, whatever form it takes.”
Specifically in relation to the issue of whether the brand had a reasonable degree of control over the post on the facts of this case, the Panel noted that:
“The advertiser is aware of Mr Black’s position as an influencer. The Panel noted that there is an existing commercial relationship between Mr Black and the advertiser and that while the exact circumstances surrounding this post are not known, it is likely that Mr Black received the product for free, at a discount, or as part of a separate arrangement. The Panel considered that it is reasonable to assume that the motivation for an advertiser to provide product to an influencer with whom they have a positive relationship is that they will post about the product or otherwise draw the attention of their followers to the brand as Mr Black did in this case. The Panel considered that the advertiser has undertaken the activity of providing product to an influencer, and in choosing to provide the product they are exercising a degree of control, and the post did draw the attention to the product.”
Having found that the post the subject of the second complaint was an advertisement, the Panel determined that there was nothing within the wording of the post that clearly distinguished it as advertising.
Can post-campaign influencer posting still be considered an ad?
As noted above, it is not known whether the post the subject of the second complaint occurred as part of the commercial relationship, or outside of the campaign brief.
What is apparent is that influencers and brands should be cognisant of the fact that where a commercial relationship exists, or has existed, between a brand and an influencer, any subsequent posts which may be found to draw the attention of the public in a manner calculated to promote the brand and / or product should include relevant disclosure about the existence of that commercial relationship. A failure to do so may result in an upheld complaint to Ad Standards.
The facts of this case also highlight the importance of providing all relevant details of the campaign to Ad Standards should you find yourself the subject of the complaint. In many cases, the Ad Standards Community Panel have had to proceed on certain assumptions where information is not otherwise provided.
For more information about the legal aspects of your influencer marketing strategy, 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.
