'Truth Be Told'​ - advertising rules for social influencers

The ASAI Code of Standards for Advertising and Marketing Communications 7th Edition (the ‘Code’), introduced on 1 March 2016, applies to all marketing communications, including the more traditional methods of advertising and online advertisements, with limited exception. The Advertising Standards Authority of Ireland (the ‘ASAI’) published the ASAI Guidance Note on the Recognisability of Marketing Communications (the ‘Guidance Note’) in November 2016 in response to concerns, both from the public and from bloggers, regarding best practice for promotion and advertising on social media.

Section 3 of the Code states that marketing communications must be designed and presented in such a way that it is apparent it is a marketing communication and its presentation should not misrepresent its true purpose. The Guidance Note specifically addresses the application of this section to blogging and social media accounts and advises that posts should not be presented as independent reviews or private blogs if they are in fact marketing communications. Furthermore, in accordance with Section 4 of the Code, marketing communications should not mislead consumers by inaccuracy, ambiguity, exaggeration, omission or otherwise.

Despite assurances from the ASAI that the onus rests with the relevant advertisers to ensure bloggers/ social influencers adhere to the Code, the Code itself states that the primary concern is the content, and as publishers of these advertisements with input on the content of same, bloggers/social influencers should exercise prudence in publishing their posts and adhere strictly to the Code.

A post will come firmly within the Code in circumstances where compensation has been received by the blogger/social influencer and where the advertiser exerts significant control over the content of the review. If no compensation has been paid, the post is less likely to be considered marketing material. The grey area is where bloggers/social influencers are sponsored by a brand but that same brand has no control over the content as strictly such posts may be considered to fall outside the Code – the suggestion from the ASAI is that best practice is for the blogger/social influencer to disclose this commercial arrangement.

The ASAI further advises that where products are provided to a blogger/social influencer free of charge and no control is exerted by the provider of the products, any post featuring the products will not be considered to be a marketing communication. Bloggers/social influencers should be aware however, that the Competition and Consumer Protection Commission may require disclosures under the Consumer Protection Act 2007.

The ASAI advises social influencers/bloggers that the hashtag ‘#ad’ be used to identify marketing posts, though states that other more creative mechanisms may be used to identify marketing content, as long as it is clear and visible to consumers that what they are viewing is marketing. This disclosure of marketing communications cannot be subversive in its location and its existence within the terms and conditions or at the end of a post will not suffice.

Complaints/Penalties

Complaints may be submitted to the ASAI for breach of the Code, in accordance with Appendix I of the Code. Once a complaint is received, the ASAI will review and consider whether the complaint comes within the terms of reference of the Code and whether there is a case for investigation. The decision whether or not to pursue a complaint is a matter for the ASAI but where it is decided to conduct an investigation, the ASAI will inform the advertiser and/or promoter of the complaint and invite them to respond.

Upon receipt of a response, the ASAI will prepare a case report and base their conclusion on the facts before it. The case report and the conclusion may be published on the ASAI website which is stated to be an important part of the regulatory system. Any marketing communication that is found by the ASAI to breach the Code must be withdrawn or amended.

Any advertiser or promotor who does not adhere to an ASAI decision may be disciplined and may be subject to penalties, including fines.

Recent Complaints

The complaint in the case of ‘Faces by Grace and Boots’ related to a post by ‘Faces by Grace’ advertising the ‘Boots Advantage Card’. The advertisement was paid for by the Boots pharmacy company who had requested, in a briefing document, that ‘#ad’ would be included in all posts. ‘Faces by Grace’ stated that human error was to blame for the omission of ‘#ad’ in the offending post. The ASAI in its case report published in ASAI Bulletin 18/3 upheld the complaint against both ‘Faces by Grace’ and ‘Boots’ and found that the advertisement was in breach of the Code. It was directed that the advertisement not to appear again in its current form but the ASAI noted the steps taken by the advertisers to ensure compliance with the Code.

In 2018, Ms. Rosie Connolly and Rimmel Ireland were complained to the ASAI and the case report was published in ASAI Bulletin 18/2. The case related to a post on Instagram advertising a Rimmel product. The complainant considered the advertisement misleading as the image posted had been filtered and photoshopped. Ms. Connolly responded that the image had been approved by Rimmel and as such the complaint should be addressed to Rimmel. Rimmel stated that they had not intended to mislead, had updated their advertising policy to avoid any future issue with heavily filtered images and removed the post from all media, encouraging Ms. Connolly to do so also. The complaint was upheld against both Rimmel and Ms. Connolly. The ASAI considered the practice of applying post production filters to be a breach Section 4 of the Code which restricts misleading advertising, exploitation of consumers and unsubstantiated advertising which could be considered by consumers as objectively true. As all posts had been removed prior to the decision of the ASAI no further action was required in the matter.

These two cases demonstrate that the mere presence of ‘#ad’ does not preclude an advertisement from being scrutinised by the ASAI for a breach of Section 4 of the Code.

Conclusion

While the ASAI has stated that the onus to ensure compliance with the Code rests with advertisers, actions taken by ASAI and some of their more recent case reports show how bloggers and social media influencers are not shielded from blame and that they too need to be mindful of their responsibilities and should exercise caution in posting on the internet to ensure they themselves are not found in breach of the Code.

For further information please contact Bríd McCoy (Partner) or Andrea de Courcey (Solicitor) or your usual AMOSS contact.