Should you be influencing your influencers?

On 23 January 2019 the Competition and Markets Authority (“CMA”) published new guidance for social media influencers (“the Guidelines”). This guidance makes clear the need for influencers, and the brands that they represent, or advertise, to be transparent with their activities so as to avoid breaking consumer protection law. The guidance must be considered in line with both the Consumer Protection from Unfair Trading Regulations (“the Regulations”) and also the CAP Code (“the Code”).

In particular brand owners need to be extremely careful in how they engage with influencers so as either to avoid bringing the influencer’s activities with the Code’s remit or, if they are brought within its remit, then ensuring that the influencer complies with the Code.

The Code covers non-broadcast advertising and direct and promotional marketing which includes own and third party websites as well as social media. Your own posts on social media will automatically fall under the Code as will sharing or endorsing (i.e. liking) posts by others. In addition if you use influencers to promote your products or services then you need to be careful with how they are engaged as if they are deemed to be controlled by you then you will be responsible for ensuring that the content that the influencer produces complies with the Code.

The concept of control can include instructions on what to say or perhaps what not to say (for example contractual obligations not to post anything derogatory about your brand), it could be asking to see what the influencer is planning to post before its posted or dictating the hashtags the influencer should use, which platform the influencer should use and how many times they should post about the brand.

If therefore you want your relationship with an influencer to fall outside of the Code’s remit then you need to ensure that you don’t control what they post and either it’s a genuine sponsorship arrangement whereby money is paid to the influencer but without control over what he or she posts or that the influencer is gifted products on the condition that they provide an honest review of the same.

If you want to have control over the influencer then you can do so but you will then be responsible for ensuring that the influencer’s posts comply with the Code which includes making it clear that the post is an advert and ensuring that the post is not misleading.

The Guidelines are therefore of relevance both to influencers and brands that use influencers to promote their products/services. The Guidelines make clear that the influencer should:

• say when they’ve been paid, given or loaned things;
• be clear about their relationship with a brand or business (within the last 12 months or so);
• not be misleading; and
• be honest about what they’re promoting.

It is this final point that is perhaps the most relevant from a practical point of view as the Guidelines set out a number of examples of conduct that doesn’t comply with the Regulations (nor, presumably, would it comply with the Code) which includes tagging of brands without disclosure of the relevant relationship, using ambiguous language such as ‘thank you’, ‘made possible by’, ‘in collaboration with’ etc or using unclear hashtags such as #sp, #spon, #client, #collab.

Helpfully however the Guidelines then set out what the CMA deems to be “useful descriptions” that influencers can use to describe their relationship with a brand, including:

• advertising feature;
• advertisement promotion;
• #ad; and
• #advert.

The CMA make clear that these are merely examples and there is no ‘one size fits all’ approach. What is important is to ensure clarity to consumers as to the relationship that the influencer has with the brand that it is promoting.

This is clearly an area that is growing in importance and both influencers and brands need to stay abreast of the latest guidance that comes out from the CMA, the CAP and the ASA. Breaches of the Regulations and the Code can have serious legal and reputational consequences and as the use of influencers gathers pace so does the need to ensure compliance.