Influencer disclosures: remember #ad! – Daniel Wellington
What disclosures need to be made in influencer marketing to ensure ads are easily identifiable?
The background
Louise Thompson, a television personality, posted an image of herself on Instagram wearing a Daniel Wellington watch, with the caption: "sippin’ [sic] on yummy coconuts 3x size of my skull! Wearing my @danielwellington classic petite Melrose 28mm watch and matching cuff… you can get 15% off using the code ‘LOUISE’."
The images featured Ms Thompson drinking from a coconut while wearing a Daniel Wellington watch, with the watch featured prominently in the centre of the image.
The complaint
The Consumer Protection from Unfair Trading Regulations 2008 prohibit misleading omissions in advertising, such that if a commercial practice fails to identify its commercial intent, unless this is already apparent from the content, it is likely to be misleading.
The CAP Code reflects these requirements. CAP Rule 2.1 states that marketing communications must be obviously identifiable as such. Further guidance from the ASA states that it must be obvious to the consumer that a commercial relationship exists between the advertiser and the social media influencer.
The complainant challenged whether or not the post was obviously identifiable as a marketing communication.
The response
Ms Thompson stated that the correct hashtag was not included and that the post had since been amended.
Daniel Wellington AB went on to explain that they had a written contract with Ms Thompson which stated that the inclusion of terms of disclosure such as “#sponsored” or “#ad” should have been used to make it directly clear that the posts were ads for Daniel Wellington. They explained that in the caption of the post, the influencer stated her personal discount code which could be used on purchases from Daniel Wellington’s official website, and the watch and cuff had a central position in the image so that the post was dedicated to the Daniel Wellington brand. They further highlighted that they expected all of their brand ambassadors who marketed Daniel Wellington products to ensure that they complied with applicable rules regarding marketing and that they took responsibility for designing their social media posts they had agreed to.
The decision
The ASA noted that a commercial relationship existed between Daniel Wellington and Ms Thompson which consisted of a contractual agreement, under which Ms Thompson agreed to promote Daniel Wellington products by posting on her Instagram account and was paid in return.
The details of the contract specified time periods of posts, restrictions on posting about other brands as well as granting Ms Thompson a personalised discount code to share with her followers. All of this highlighted a significant degree of editorial control over the content, which led the ASA to conclude that both Ms Thompson and Daniel Wellington were jointly responsible for ensuring that the promotional activity undertaken by Ms Thompson was compliant with the CAP Code.
It was noted that while the post differed in some aspects from her usual posts, and contained some elements that indicated that there may be a commercial relationship between Ms Thompson and Daniel Wellington, such as the handle "@danielwellington" and a personalised discount code, the ASA did not consider this to go far enough, in terms of the context of the post, to establish that the post was advertising content.
Therefore, in the absence of a clear identifier such as “#ad”, the post was not obviously identifiable as a marketing communication and it breached the CAP code.
Why is this important?
The case highlights the importance of properly identifying advertising content and how #ad has pretty much become one of the settled means for disclosing advertising content by influencers. This remains a hot topic for the ASA, who are currently conducting a review of how paid-for influencer and native advertising is sign-posted online. It is also now a target for the CMA, which has also launched its own investigation (in August 2018) into influencer marketing to gather more information on whether social media stars are being transparent about sponsored posts. This has included the CMA actively seeking undertakings from these stars to try and prevent their followers from being confused over their brand relationships.
Any practical tips?
Daniel Wellington appear to have instructed their collaboration partners to use appropriate wording to clarify that their uploaded content was advertising. It is not clear from the ruling if this was clearly signalled in the contract itself – which is clearly a good step (preferably in bold highlight) at the top of the contract. Consider also providing training to influencers and checking their posts to ensure they are disclosing in the right way. On-going monitoring through signing up to the influencer's posts is a simple way of keeping an eye on a brand ambassador, and ensuring that he/she is on the right disclosure track.