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ASA ruling on contractual relations Brooks Brothers

Published on 21 January 2020

Can a post by an influencer be deemed to be an ad, even when the post is at the influencer’s own initiative and to his own followers, and not at the direct request of the relevant brand?

The key takeaway

Even where a post is organic (ie at the initiative of the influencer), beware of any contractual relationships which may already be in play with the brand. This will likely tip the post into being a marketing communication. 

The ad

An Instagram post by fashion influencer Matthew Zorpas, posted in March, featured an image of himself being measured for a suit, accompanied by text which stated “A man in a well Made to Measure suit will always have a better attitude. Get 25% off your #madetomeasure experience at @brooksbrothers.unitedkingdom in Regent Street until March 31st”, followed by various hashtags. 

The complaint

The complainant challenged whether the post was obviously identifiable as a marketing communication. 

The response

Brooks Brothers confirmed that although it had a contractual agreement with Matthew, the post in question was in fact an organic post and not sponsored by Brooks Brothers in any way. Brooks Brothers provided copies of various other Instagram posts by Matthew which were paid sponsored posts and compared it with the post in question. Matthew also stated that the Brooks Brothers post in question was an offer that he shared with his followers, rather than paid for by the brand. 

The decision

The ASA understood that Matthew was contracted to post a minimum number of stories across his social media networks as part of his financial agreement with Brooks Brothers. The ASA noted from the agreement that specific hashtags were to be used for each month in which the content was posted, coupled with the “Paid Partnership” and “advertised by brooksbrothers.unitedkingdom” labels, which were included in previous posts by Matthew. The influencer had used the hashtags that were stipulated in the agreement for the month of March to promote the “Made to Measure” campaign and the influencer had tagged the brand in the image and caption. 

By virtue of the contractual agreement, the ASA concluded that Brooks Brothers had sufficient control over the content of the post for it to be considered a marketing communication and therefore falling within the remit of the CAP Code. Brooks Brothers were therefore found to be jointly responsible for ensuring that promotional posts by Matthew were compliant with the CAP Code. Even though the post was at the influencer’s own initiative, it reflected commercial arrangements with the brand. As such, the post was always at risk of being considered an ad, regardless of the fact that it was an organic one without boosted distribution. There was nothing in its content, such as “#ad” placed upfront, that made it clear that it was an ad. 

Why is this important?

The CAP Code states that marketing communications must be obviously identifiable and must make clear their commercial intent, if it’s not obvious from the context. The ASA is committed to achieving transparency in this area, and will almost always view a contractual arrangement with an influencer (even if not directly connected to the post in question), as evidence of a form of editorial control over the posts of that influencer. 

Any practical tips?

Actively monitor your influencers! Even though Matthew Zorpas made the post at his own initiative, this was still deemed to be under Brooks Brothers’ control by virtue of the contractual arrangement they had with him. Active monitoring of his social media activities (eg by someone in the branding team “following” him”) might well have caught this before it became an issue by a simple request to mark all his posts for Brooks Brothers with #ad.