On the 23rd January 2019, CMA (Competition & Markets Authority) here in the UK published new regulations and guidance in regards to social media influencers. Under the heading of ‘influencers’, the CMA includes bloggers, vloggers, celebrities and social media influencers.
The new UK regulations for influencers have been a source of confusion for quite a few people looking for clarification, so I hope to clear some things up in this post. I have also reached out to the CMA for further explanation on certain points, so if/when I get a response to my questions I will update this post with all relevant information!
I have also shared my personal thoughts and opinions on the new guidelines and would definitely love to discuss it more with you in the comments!
New UK Regulations for Influencers
Who makes these regulations?
In the UK, there are three bodies that create and publish regulations for influencer marketing. These are the CMA, ASA and CAP. Yep, welcome to the world of fun acronyms.
The CMA, or the Competition & Markets Authority, is the UK’s main competition and consumer authority. They are an independent government department who investigate mergers, markets and regulated industries. They are also responsible for enforcing competition and consumer law.
The ASA, or the Advertising Standards Authority, is the UK’s advertising regulator. They ensure that ads in the UK stick to the rules (Ad Codes).
Our final three letter acronym. CAP, or the Committee of Advertising Practice, is responsible for writing the Ad Codes. They provide advice and training to help businesses follow the rules and also take action against misleading, harmful or offensive advertising.
What are the new regulations for influencers?
On the 23rd of January, the CMA published guidance titled “Social media endorsements: being transparent with your followers”. This set out guidelines for what constitutes an advertisement, how to properly disclose an advertisement and the ramifications for not correctly disclosing paid and unpaid promotions.
The CMA published a list of ‘things influencers need to do’, including:
- Say when you’ve been paid, given, or loaned things
- Be clear about your relationship with brands
- Don’t be misleading
- Disclose in a way that is honest, transparent, easy to understand and unambiguous
- Disclosure should be upfront
Regulations already existed but have been updated with the current guidance. Regulations covering influencer marketing are part of the CAP Code and also consumer protection legislation, which is part of the Unfair Trading Regulations (2008).
Current thoughts: HALLELUJAH! It’s about time that influencers have real guidelines on how to properly disclose because over the years I’ve seen an incredible amount of people who seem to entirely ignore the concept of surreptious advertising. This brings the UK more in line with other countries like the USA (their FTC guidelines are pretty straightforward and are basically what I have always used as a guide for proper disclosure) but some parts of it seem to be taking things more towards a Germany level (i.e. excessive and silly).
What constitutes as an ‘ad’?
Firstly, what do these three organisations include as an advertisement?
- Paid-for space: this includes sponsored/promoted posts on social media as well as banner ads and paid-for search results
- Own advertising: this includes advertising your own products (e.g. items you sell or events you are running) on your own channels, as well as advertising giveaways
- Affiliate marketing: if you are promoting something with a discount code or affiliate link, this is also an advertisement and should be disclosed as such
- Advertorial: this includes content you create for a brand that you post on your own channels and are an ad if the brand paid you (either money or ‘in kind’, such as free product or a free hotel stay) and exerted some form of control over the content (e.g. dictated when you should post or required final approval before publishing)
The CMA also states that it should be disclosed if “a product, brand or service is tagged, linked or endorsed in any way.” This, therefore, means that if I receive a product for free and happen to be wearing it in an unrelated photo, I still need to disclose that this was a free product if I’m going to tag the brand.
Current thoughts: I’m not entirely sure what the difference is between paid-for space and advertorial (aside fro banner ads and paid search results) – are they referring to promoted posts whereby you pay Instagram or Facebook to share to a certain audience? If so, why is this even in the guide? What does this have to do with disclosure?
Also, declaring ‘own advertising’? So if I’m selling my own presets, I have to declare this #ad? If Julia Engel (imagining for this situation that she was British) posts a photo of herself in the dresses from her fashion line ‘Gal Meets Glam’, would she need to say #ad? Should H&M write #ad on everything they post because it’s ‘own advertising’? Hmm, doesn’t seem to make a lot of sense in my opinion.
I also find it frustrating that if a brand is simply tagged then I still have to disclose whether it was free or I was paid for it. Yes – even if the post has nothing to do with the item in question.
What does payment for advertorial content include?
Payment can include anything from a certain amount of money to free clothing. Forms of payment include, but aren’t limited to:
- Commercial relationship with the brand, such as being paid to be an ambassador or receiving free products or services
- Free hotel stay in return for content
- A trip in return for content (e.g. press trip)
- Gifted clothing or other products in return for content
- Complimentary service in return for content (e.g. hair and make-up for an event)
According to the CMA, these forms of payment for content make something an ad when the brand has control over the content. If there isn’t this form of control then it may mean it’s not an advertisement, but consumer protection legislation still applies.
Current thoughts: Okay, no real issues here. My only comment would be that I find it a bit strange that they make zero differentiation in whether the payment is monetary or ‘in kind’ (barter). Most countries (such as the US or Germany) differentiate between paid and unpaid advertisements (e.g. ‘ad’ versus ‘sponsored’).
Should all promotion be equal? Or do you think that paid and unpaid are different and should be disclosed as such?
What does control for advertorial content include?
For a post on social media (this covers a permanent post or temporary, as well as things like a live stream or stories) t0 constitute an advertisement, the brand needs to have some form of control over the content. Control can include:
- Key messages or themes you need to include in the content
- Publication on a certain date/time or in a certain time frame as dictated by the brand
- Usage of a particular hashtag
- Requiring a certain number of posts
- Specification of the type of content (e.g. it should be an unboxing video, the image should show a particular part of the product)
- The brand requires final approval before posting
Current thoughts: Okay, this I find a little strange. Where did this whole ‘control’ thing come from? If a brand sends me free things but doesn’t specify how I should post about it, do I still need to disclose I got the items for free? I’ve worked with tourism boards who don’t specify what I need to post – do I still declare that? (I would, since it’s definitely a collaboration and a promotion for them, but this concept of ‘control’ seems to say no, disclosure not needed).
Disclosing past relationships with a brand
This section needed its own heading because it seems to be the part most confusing (and frustrating) for the majority of people. Me included.
According to the CMA, “even if you don’t have a current relationship with a brand, if there was a past relationship [within the last year] people need to know about this”. So this would imply that if I have worked with a brand, whether paid or unpaid, in the past year and I happen to mention said brand on my social media… I need to remind people that I collaborated with them in the past.
I can see this being a particularly big issue for fashion bloggers/influencers since the majority will generally only work with brands they would buy anyway. If a fashion blogger posts a photo where she mentions her Topshop jeans, does she need to disclose that she had a paid partnership with Topshop four months ago? To me, that seems absolutely ridiculous. Also, how confusing would that make a caption?
Photo: *insert photo of fashion influencer wearing Topshop jeans, River Island shirt and ALDO shoes*
Caption: living my best life! Top: @riverisland (not an ad, but I worked with River Island two months ago); Jeans: @topshop (not an ad, remember I did an ad for them four months ago though); Shoes: @aldoshoes
Yeah, that’s totally not confusing AT ALL. Or messy. Or… silly.
The entire point of these guidelines is transparency. How is that caption in the remotest bit transparent? None of the content was an ad, the influencer just happened to have worked with some of the brands in the past. Presumably, she already bought things from them BEFORE the collaborations too.
A personal example – I collaborated with airBaltic on a trip to Vilnius last year. If I fly with airBaltic and mention them on my stories (“off to Riga with airBaltic!” or “such a comfy flight @airbaltic”), like I generally do when I’m flying somewhere, then according to these regulations I should have at the top of my story “remember, I collaborated with airBaltic last April”.
NB: Guys, I collaborated with airBaltic in April. Heads up.
The ‘past relationships’ guideline is such a small point in their entire guidance article so it seems not very thought out and definitely not very well explained. Additionally, if we refer to their prior point of “[if an influencer was paid or receives something for free, then this] …needs to be clearly stated when a product, brand or service is tagged, linked or endorsed in any way”, then we can presume that if the item in question was given to me for free (or as part of a paid campaign) in the past year then I need to disclose that if I tag the brand on the image. If I post a photo from a trip and you can see my bag from GATTA* and I tag @gattabag, I would theoretically have to disclose in my caption that I received that bag for free in September.
*#ad, I have previously worked with GATTA Bag. They’re great. Highly recommend. This isn’t sponsored.
So which scenarios need disclosure?
This is the main point I brought up in my email to them as it definitely needs a whole load of clarification – which of the following scenarios would involve disclosure?
- Sharing an image from a press trip a few months ago. The contracted images for the brand have already been shared and now I’m just sharing my own content from the trip. Do I need to disclose as #ad?
- Sharing an image where I’m wearing clothing a company gifted me. The post itself doesn’t promote the brand directly and I have already completed my work for the brand, but I have tagged the brand in the image. Do I need to disclose as #ad?
- Posting a story about booking a hotel through a platform I have previously collaborated with. I have paid for the hotel with my own money and just mention the booking platform I used, but in the past year, I have done an unpaid collaboration with them. Do I need to disclose as #ad?
Would all of these need to be disclosed as an advertisement, or only the first two? Or the first one? Or none?!
Hopefully, we will get some clarification on this part because it seems completely ridiculous right now… so we shall see.
How should I disclose an ad in line with the regulations?
I’m so glad you asked. The CMA states that the law isn’t ‘prescriptive’ about how you should disclose a relationship with a brand, but that it should be:
- Easy to understand
- Prominent and upfront
According to the CAP code, an ad ‘must be obviously identifiable as such‘. That makes a fair amount of sense. The disclosure shouldn’t be after the ‘see more’ section, not right at the very end of the post or hidden in a sea of hashtags.
Current thoughts: So far, so good. I’ve seen it before where an influencer will include #ad right at the very bottom of the caption or within the other hashtags for that post, which most people probably won’t even scroll down to anyway. This is definitely against the regulations, and so far I have no issues with anything the CMA has suggested in reference to proper disclosure of ads.
From the guidebook by CAP and CMA on ads: “Ultimately, if it’s not obvious from the context that something’s an ad, more needs to be done with the content to make this clear. ”
Thoughts: I would disagree with their phrasing here. Whether it is or isn’t obvious from the context that it’s an ad, it still needs to be disclosed as such. That sentence seems to disagree with the majority of the rest of the regulations in regards to disclosing all paid and unpaid partnerships.
Labels to use as disclosure:
The guidebook continues to say that the ASA likes clear labels such as “ad”, “advert”, “advertisement” or “advertising feature”, as well as Instagram’s built-in ‘paid partnership’ tool.
I would agree with the use of ad/advert/advertisement, but I find the use of “advertising feature” a bit odd. The term ‘feature’ on social media generally implies it’s someone else’s content and you’re simply ‘featuring’ it on your account. So what would an advertising feature imply? That someone has paid you to share an image that isn’t yours? I’m not sure what they mean by “advertising feature” but I’d find it an odd disclosure if someone did use it.
Labels NOT to use as disclosure:
They continue to say that they recommend staying away from:
- Sponsored, spon, sp, sponsorship
- In association with [brand]
- Made possible by [brand]
- Thanks to [brand]
I find it interesting that they don’t agree with ‘sponsored’, as this is usually the disclosure used by influencers when they received something for free, along with ‘#gifted’. The CMA makes no reference to the usage of disclosures including ‘gifted’, ‘paid partnership’ (except for in the case of Instagram’s feature) or ‘collaboration’ (although I would assume this comes under the same heading as ‘collab’).
Is it just influencers who are subject to these regulations? What about magazines and newspapers?
Yep, it’s just influencers. If a magazine editor gets sent free products and he/she either mentions these in a column they write or on their own Instagram or Twitter, they don’t disclose that’s it’s an ‘ad’.
Do you ever see Cosmopolitan marking something as ‘advertisement’ when they mention a product in skincare recommendations or as clothing in a style edit? What about in the travel section of a newspaper or magazine, do they disclose whether or not they were given a free stay?
Let’s take this hotel review by the Guardian as an example. At the very bottom of the article, they state “accommodation was provided by The Beverley Arms“. Remember, the guidelines require the disclosure to be “transparent, easy to understand, unambiguous, timely, prominent, and upfront”.
- Is there a disclosure at all? YES.
- Is the disclosure upfront? NO.
- Is the disclosure unambiguous? NO, it is definitely ambiguous.
- Is it transparent? NO.
- Is it easy to understand? Not necessarily – “accommodation was provided by” could mean both ‘provided for free’ and ‘this hotel was where we stayed’.
- Is the disclosure prominent? Not at all, I was looking for it and it took me a while to find.
All in all, if this hotel review was on a blog or on social media, it would be classed as breaching the regulations for disclosing a relationship with a brand. It would be considered misleading and could result in the blogger/influencer being reported and investigated by the ASA.
Compare that to the disclosure I have to add to my hotel review – it’s upfront, transparent and easy to understand. Is this a double standard that I have to declare this and they don’t? Yes, yes it is.
I don’t mind having to properly disclose that I received free things or was paid to promote something. What I do mind is that I, as an ‘influencer’ and blogger, have to disclose like this while newspapers and magazines – both in print and online – get away without doing so.
What needs to change with these regulations?
Firstly, certain parts of the regulations/guidelines need to be clarified. I am specifically talking about the sections that include past relationships with a brand, whether it’s an ad if the brand doesn’t have ‘control’, and also differentiating between paid-for content and content in return for free products/services.
Secondly, the regulations should also be brought in line with those for journalists and for magazines. Or, I should phrase it, regulations for magazines and newspapers should be brought in line with those that social media influencers and bloggers have to abide by since we currently have the harshest regulations.
The government guidelines were published in an effort to promote transparency and, according to the CMA, “people need to know if influencers have been paid [or] incentivised… to endorse or review something”. If influencers don’t disclose properly then they are guilty of misleading their followers, according to the government.
A tip for the government…
A huge issue for me is that it looks like the government (whether that be the ASA, CMA or CAP) has entirely negated to speak to any influencers about these guidelines and regulation. There is no open discussion as to best practices, or none that I have been able to find.
If the government really wants to provide proper guidelines for social media, then they should have open and fair talks with the people they are creating regulations for. If they did, they would find out that ‘advertising feature’ is the strangest way of disclosing an ad, and ‘feature’ has a different meaning on Instagram than other forms of media.
They would see that most of us influencers ‘self-police’ – the influencer world has come up with our own ways of declaring paid and unpaid collaborations (#ad vs. #sponsorship) and discover that this whole ‘declaring past relationships with brands’ is going to make more of a mess than it will ever help transparency.
Influencer marketing may be a new and ‘scary’ world for the government, but it doesn’t mean it should get harsher regulation than marketing practices in the mainstream media. If an influencer (generally an individual, often self-employed) is held to higher legal standard than a magazine or newspaper (large bodies, usually with their own in-house legal counsel), then what does this mean for the legal world and for our society?
The government may well have opened a proverbial can of worms with these new guidelines and now we just have to wait and see how it all pans out. I’ve brought (#NotAnAd) the popcorn.
This article was brought to you by WordPress (not an ad) and Apple (not an ad, but I could do with a new laptop if they’re looking for influencers…). Penelope was not paid or offered free items (except a glass of wine by her father during the process of writing) to write this article. She also now realises this disclosure should be at the top so as to abide by the guidelines of ‘prominent’ and ‘upfront’. Darn.
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