Clifford Chance

In 2021, the Advertising Standards Authority (ASA) published its Influencer Monitoring Report, which analysed 122 UK influencers' accounts for compliance with the ASA's disclosure rules. The results showed that the rules were only followed around a third of the time. In response to this, the ASA has introduced new measures to sanction influencers who repeatedly breach disclosure rules in relation to adverts on social media.

Compliance with social media disclosure rules remains low

Guidance for influencers was first introduced by the ASA in 2018, with revised guidance published in 2020. In short, all social media posts that a brand has "editorial control" over will fall under the ASA's remit and must be clearly marked as being adverts. This includes both posts that have been paid for and posts that contain "gifted" products. These rules are explained in further detail in our articles on using influencers in marketing and advertising on social media in the UK.

Despite the existence of this guidance for several years now, UK influencers continue to fall foul of social media disclosure rules, as evidenced by the ASA's Influencer Monitoring Report published in March 2021. This report was produced in response to rising complaints to that ASA about whether ads are properly identifiable on social media and as part of the ASA's commitment to be proactive in its regulation. It monitored 122 UK-based influencers' posts for a three week period and found that only 35% of advertorial posts were properly disclosed.

What happened when an influencer failed to disclose an advert?

Historically, the ASA's primary penalty for failure to disclose an advert on social media was publishing a ruling against the brand and influencer and the details of their breach on the ASA's website. This is typically the result of a specific complaint being made to the ASA, rather than ASA monitoring. The ASA could also refer advertisers who refuse to comply to bodies such as the Trading Standards Authority for further action if necessary.

Despite this, the 2021 Influencer Monitoring Report demonstrated that these measures were failing to deter non-compliance with the social media disclosure regulations. In response to this, the ASA introduced new measures in the summer of 2021 to reprimand influencers who repeatedly breach disclosure rules in relation to adverts on social media. The ASA launched a non-compliance webpage that names and shames influencers who have repeatedly broken the ASA's rules. The idea is that influencers' names would remain on this page for three months whilst they are subject to a period of enhanced monitoring checks.

If an influencer does not satisfactorily change their disclosure practices on social media then they will remain on the ASA's non-compliance page until such time as they do. For example, one reality TV star has been on the ASA's list since it was launched in June 2021. That star's social media channels are still being monitored by the ASA at the date of publishing this article, over 7 months later. So far, only four influencers have been named and then removed from the list.

The ASA also threatened to take further action against influencers who continue to break the rules, such as taking out paid ads against them, asking social media platforms to have their content removed or referring them to statutory bodies for possible fines.

The ASA's latest sanctions

On 18 January 2022, the ASA upheld its promise to take further action. It took out Instagram adverts against six repeat offenders who had failed to improve their disclosure practices after landing on the non-compliance webpage.

The adverts read:

“[Name] has been sanctioned by the UK’s ad regulator for not declaring ads on this platform. Be aware that products and services recommended or featured by this influencer may have been paid for by those brands. Our non-compliant social media influencer page at asa.org.uk is regularly updated to inform consumers of those who break these rules.”

These adverts are targeted at the same audience that these individuals are seeking to influence and, the ASA states, will remain in place until the necessary changes to their disclosure practices are seen by the ASA.

Conclusion

The ASA has published several pieces of influencer guidance over the past few years but it appears that compliance with the social media disclosure rules remains low. Whether or not the new measures will serve as a big enough warning to influencers that they should properly disclose their adverts remains to be seen. The ASA's latest move to target an influencer's audience through adverts is no doubt intended be damaging to an influencer's reputation and credibility, which are both key to successful influencer marketing.

We have previously written about how brands can suffer reputational damage on social media and how critical it is for both influencers and brands to be aware of the disclosure rules when engaging in influencer marketing. The ASA's introduction of more stringent measures against non-compliant influencers only makes this more apparent.

It's also worth noting that, so far, the ASA has only implemented measures against influencers who are repeat offenders. However, the regulatory body has said that it will be looking to take action in the future against brands that repeatedly fail to disclose adverts, or do not provide assurances that they will ensure adverts are properly labelled.

It is more important than ever for brands to understand the ASA's regulations surrounding disclosure of adverts on social media and ensure that the influencers they partner with are aware of their obligations too.

Please see our articles on key considerations for brand owners and how brands can suffer reputational damage for further information on how to pick the right influencers and protect your brand from potential reputational damage.