Advertisment
The advertisement were Instagram stories of an influencer applying the advertisers’ makeup.
Story 1:
‘I have 30% off inglot website
🔗Julie is code’
‘Ad’ was in the bottom right corner. This text was smaller than the other text onscreen and was white in colour. Other text was white or brown and the link to the discount code was on a beige background.
Story 2:
‘Spot the difference
🔗Mascara is linked🔗
“Julie” is discount”’
‘@inglotireland ad’ was in cursive type in the top-right corner. This text was white and smaller than other onscreen text. It was lowly contrasted with the background.
Complaint
Issue 1:
The complainant believed that the disclosure that the stories were advertising material were not sufficient as they were small and in the corner of the screen. They also said that they were not in their opinion sufficiently visible and blended into the background.
Issue 2:
The influencer, they claimed, also had applied a filter and the complainant found this to have been misleading.
Response
Response: Advertisers’ Response:
Issue 1:
The advertisers said that the complained about content was created, directed, and published independently by the influencer. While they had provided the discount codes featured, the advertisers said that the creation, publication, and inclusion of all required disclosures was solely the responsibility of the influencer. They said that they had no influence over how the story was produced nor published. The advertisers said that they felt that the whole video should have been taken into account and not the isolated screenshots provided. At any rate, they wished to point out that the frames provided included the advertisers’ name, an ‘ad’ label, and other indications of a commercial partnership. They said that having been made aware of the complaint, they contacted the influencer and received an undertaking that disclosures would be more clear and prominent in future. They said that the complained about advertising was no longer available.
Issue 2:
The advertisers in their response made no specific reference to the use of filters.
Influencer’s Response:
Issue 1:
The Influencer responded that they believed the advertising had been clearly marked.
Issue 2:
The influencer in their response made no specific reference to the use of filters.
Conclusion
The Complaints Council considered the detail of the complaint, and the responses received from the advertisers and the influencer.
Issue 1 Upheld:
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 considered that by providing for specific disclosures, consumer recognition that content is advertising would be enhanced. In addition, they noted that the Joint Guidance provided that advertising disclosures should be at the start of a video and the first word in a text block.
The Council noted that the discount code in the advertising had been provided by the advertisers and therefore they considered that the advertisers had a responsibility to ensure that advertising in which the discount code appeared was compliant with the ASA Code.
The Council noted in the first story that while the word ‘Ad’ had been used, a hashtag (#) had not been used and it had been placed in the bottom right corner. They noted that the text was smaller than the other text onscreen and was white in colour and did not contrast especially well with the background. As such, the content had not been immediately identifiable as commercial content.
When the second story was considered, the Council decided that this was also not immediately identifiable as commercial content. They noted that the disclosure, ‘@inglotireland ad’, was in cursive type in the top-right corner. This text was white and smaller than other onscreen text and was lowly contrasted with the background. The Council decided that as well as being incorrect, it was more difficult to see than the first story.
In the circumstances, the Council concluded that the omissions of a hashtag, the inconsistent clarity of the fonts, the colour of the text which was low contrast against the backgrounds, and the incorrect placement of the disclosures were in breach of Sections 3.31 and 3.32 of the Code.
Issue 2 Upheld:
The Council noted the requirements of the Code that an marketing communication should not mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise (S. 4.1), and that advertisers should not exploit the credulity, inexperience or lack of knowledge of consumers (S. 4.4) and that a marketing communication should not contain claims – whether direct or indirect, expressed or implied – which a consumer would be likely to regard as being objectively true unless the objective truth of the claims can be substantiated (S. 4.9).
The Council noted that no evidence had been received showing that a filter had not been used while the products were being applied. In the absence of such evidence the Council considered there was a potential to mislead and as such, the content was in breach of the Code at sections 3.10, 4.01, 4.04, 4.09 and 4.10.
Action Required:
The advertising should not appear in its current form again. The Council reminded all parties of the requirements of the ASA Code and the Guidance in regard to disclosing commercial content posted by influencers.
The Council welcomed the fact that the advertisers had contacted the influencer regarding the incorrect disclosure.
