Advertisment
An Instagram story on the influencer’s account included a screenshot from a post they had published. The image featured the Influencer sitting on a bed taking a photograph. Wording on the story frame included:
“The Mid-Year @emmasleepireland sale is on.”
The caption in the screenshot image stated:
“[influencer handle] AD Emma Sleep are having their Mid Year Sale with discounts up to 55% + another 5% with my code 😔😴”
Further onscreen text stated:
“Up to 55% off plus an extra 5% with my code
Use code SIOBHANDREAMS5 or click the link below 👇
Shop Emma Sleep Sale
Open to UK and IE AD”
Complaint
The complainant did not consider that the marketing communication had been identified correctly as the identifying label AD had been placed at the bottom of the image.
Response
The advertisers said they wished to express the fact that they took compliance with advertising regulations very seriously and considered such regulations to be crucial in helping them to maintain their good reputation with their customers.
The advertisers said they had worked with the Influencer in the past to advertise their products. They also had an ongoing collaboration with them when they published the post subject to the complaint.
During past collaborations the advertisers said, the agreement with the Influencer had comprised of their standard template for Influencer contracts. In this standard template, the influencer was advised that their posts must comply with current laws and regulations as they wanted to make sure that advertising material for their products was always published correctly.
The advertisers pointed out, however, that in this case, they had not asked the Influencer to sign the Influencer Contract Template as they considered it to be clearly understood that advertising for their products was to be published in accordance with existing advertising regulations.
As the Influencer in question was a renowned and experienced social media influencer, they said they relied on their reputation and extensive professional experience in the sector, particularly regarding the requirements for identifying marketing communications correctly.
The advertisers said on receipt of the complaint, they had taken the opportunity to contact the Influencer’s management team to request that they take particular notice of the rules in relation to proper advertisement disclosure in case of any (potential) future collaborations between them and the Influencer. They said they had also discussed the matter with their Business Team responsible for the Irish E-Commerce market and the Team had confirmed that they would pay particular attention, to ensure that the influencers with whom they collaborated with in Ireland, would adhere to the applicable rules relating to advertising disclosure in their social media posts.
The advertisers said they had also contacted their Legal & Compliance Team, to enhance their compliance marketing practices.
Agency:
The Influencer’s management agency said they wanted to emphasise that both the Influencer, as an online influencer, and their agency took the responsibility of full advertising disclosure very seriously. They considered this commitment was evident in the Influencer’s consistent use of clear ad disclosures across the referenced content. However, they said, they were always open to constructive feedback as the industry involved was an evolving one.
Conclusion
Complaint Upheld.
The Complaints Council considered the detail of the complaint, and the responses received from the advertisers and the influencer’s agency.
The Council noted the Code requirements that marketing communications should be clear that they are marketing communications (3.31) and should not misrepresent their true purpose such as being presented as user-generated content (3.32). They also noted the joint guidance published by the Advertising Standards Authority and the Competition and Consumer Protection Commission (CCPC) on disclosing advertising content, which provided that advertising content should have one of three primary labels as a disclosure; #AD, a platform provided tool or #Gifted.
The Council noted that while the word ‘AD’ had been used, it had not been positioned correctly, nor had a hashtag (#) been used alongside it, therefore, the commercial content in this case had not been identified correctly as a marketing communication. In the circumstances, the Council concluded that the omission of the hashtag and the incorrect placement of the disclosure was in breach of Sections 3.31 and 3.32 of the Code.
ACTION REQUIRED:
The advertising should not reappear in its current form.
The Council reminded all parties to ensure commercial content was disclosed correctly.
