What’s changed?
On 1 February 2021, the AANA released a revised AANA Code of Ethics (the Code) and supporting Practice Note.
The revised Code included a material change to section 2.7 of the Code in relation to distinguishable advertising as follows:
- Previous section 2.7 – “advertising or marketing communications shall be clearly distinguishable as such to the relevant audience”.
- Current section 2.7 – “advertising shall be clearly distinguishable as such”.
The revision effectively removed the relevant audience test that was previously applied when considering whether advertising was clearly distinguishable as such.
The relevant audience test was considered in a number of cases including one involving Mercedes-Benz Aust/Pacific P/L and Pip Edwards. The Panel in that case considered that the relevant audience for an influencer’s posts would be people who follow the influencer on social media.
Now that the relevant audience test no longer applies, brands should ensure that their influencer posts are clearly distinguishable to anyone who may view the content, not just the influencer’s followers.
In addition to the change to clause 2.7 of the Code, updates were also made to the Practice Note imposing a positive obligation on Influencers to disclose commercial relationships in a clear, upfront manner that can be easily understood.
The introduction of the AIMCO Australian Influencer Marketing Code of Practice has also likely built awareness around the issue of disclosure which may have also led to an increase in the number of complaints made to Ad Standards regarding sponsored influencer posts on social media.
How has the public responded?
Following the introduction of the revised Code and Practice Note, several complaints have been made to Ad Standards in relation to suspected breaches of the revised section 2.7 of the Code.
A number of those complaints have been upheld including:
In this case, the Panel noted that the caption for the advertisement included information relating to where the product could be purchased and the Panel noted that they considered that this would be an indication to some members of the community that it was a commercial post, but that not all members of the community would be able to identify the post as advertising based on the description alone and therefore the post in its original form did breach section 2.7 of the Code. The influencer added #ad to the post to make it more clearly distinguishable as advertising.
This case involved a complaint made about a post by Anna Heinrich which tagged the brand in the caption of the post. The Panel considered in that case that while some followers of the influencer may be able to recognise that the post was most likely advertising, there was nothing in the wording of the post and no hashtags which clearly demonstrated that the post was advertising material. The case decision states that the Panel considered that tagging the brand on its own was not sufficient to clearly and obviously show that there was an arrangement between the brand and the influencer.
The Panel made similar comments in its determination to those that it made in relation to Runaway The Label and Anna Heinrich.
This case involved the influencer purchasing products and also being gifted additional products. The Panel noted in the case report that “Rozalia Russian is a well-known influencer and although there may be no formal arrangement in place, the brand has provided free product, presumably in the hope or expectation that she will post with the product, and that this would reasonably be considered to be advertising.” The Panel noted in this case that even using #gifted would likely be insufficient disclosure of the advertisement.
Removal of the relevant audience test and the effect on complaints
The case involving Runaway The Label and Anna Heinrich (discussed above) was similar on the facts to a complaint made about Runaway The Label and Sophie Batzloff prior to the revised Code coming into effect. The complaint in relation to Sophie Batzloff’s post was dismissed after the Panel considered that the focus on the product and the inclusion of the brand tag would make it clear to the relevant audience of Sophie Batzloff (being her followers) that the post the subject of the complaint was sponsored content. The two cases involving Runaway The Label (one before and one after the revision of the Code) show the effect that the removal of the relevant audience test has had when considering complaints.
Other Dismissed complaints since the introduction of the revised Code
A number of complaints in relation to influencer disclosure have also been dismissed since 1 February 2021. These include complaints made about posts involving:
The cases involving La’Bang Body and Sarah’s Day considered the issue of an influencer advertising a product in which she has a vested financial interest as a part owner of the product. In those cases, the Panel found that the posts were by the advertiser and not a third party influencer and that it was not an advertisement by or for La’Bang Body.
The case involving Crown Melbourne Limited and Anna Heinrich was determined to be distinguishable advertising through the caption used (referring to a hotel award) and the use of #crownpartner.
Responding to Complaints
As an advertiser, it is important to always respond to complaints made to Ad Standards about influencer posts. In the case involving Tom Ford International, no response was received by the advertiser prior to the publication of the case report and the Panel therefore proceeded on the presumption that the post was authorised by the advertiser on the basis that the influencer was a well-known influencer who would be likely to post such material in a commercial arrangement.
It is also important that enforceable influencer agreements be put in place providing an obligation on the influencer to amend any post at the request of the brand.
How to get an influencer agreement or learn more about influencer disclosure requirements
Schedule a free initial consultation to chat about your influencer agreement needs and to learn more about how to ensure compliance with the Code during your next influencer marketing campaign.
You can also find out more about the 2021 updates to the Practice Note here.
FOR MORE INFORMATION ON AVOIDING OR DEALING WITH COMPLAINTS ABOUT INFLUENCER POSTS, 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.
