The Responsibility of the Influencer – Part Two

Some influencers flagrantly break the law with seemingly little consequence. However, the Advertising Standards Authority (ASA) and Competitions and Markets Authority (CMA) are intent on changing this. Following on from Part One, we look at how influencers can be reprimanded and even sent to jail for reckless promotion. 

Though it’s not just regulatory bodies who punish influencers. Influencers themselves are harming the very industry they work in an attempt to gain a foothold on the ladder. Fake promotions can be as damaging and lead to greater repercussions than any regulatory bodies could enforce. 

 

The Law – what is it and whose been caught out? 

The Law. Dry and tedious and very rarely looked at unless you’re already in trouble. A good baseline knowledge of relevant laws can prevent you from ever ‘accidentally’ crossing the line. Feigning ignorance is not always a good defence. To help clue you up without sending you to sleep, below is a whistle stop tour of relevant regulatory bodies and their rules. I would heavily advise taking a peek at their websites as well. Take note, as this could protect you in the future.

ASA

  • What is it?

The UK’s advertising regulator that applies the rules in the CAP Code to advertisements.

  • What are the rules? 

Marketing communications should be legal, decent, honest and truthful; be prepared with a sense of responsibility to consumers and to society; no marketing communication should bring advertising into disrepute; delay in responding to the ASA’s enquiries will normally be considered a breach of the Code; and marketers should deal fairly with consumers.

  • When are the rules enforced?

The ASA takes action against individual advertisements or campaigns. For the ASA to take action on an advertorial, the content has to be controlled by the marketer/ brand and published in exchange for payment or gift.

  • Powers of punishment

The ASA can uphold a complaint and ban certain posts and ads. Tougher punishments are within the scope of the CMA.

  • Additional advice

Handy tips from the ASA include avoiding terms such as ‘sponsored’, ‘funded by’ or ‘gifted’ when stating that a post is an advert. These phrases are too vague. Also, any adverts for age-restricted products (18+) should not feature an under-25 in any significant role. This includes slimming or weight loss products, which must not be directed at under-18’s or appeal to them. If your target market is under-12, adverts must be very obvious and overt.  The disclosure must be large and colourful and appear as the ad is activated.

 

CMA

  • What is it?

Government run regulatory body. Protects consumers from unfair trading practices by ensuring businesses operate within the law.

  • What are the rules?

All marketing and advertising must be: an accurate description of the product; legal; decent; truthful; honest; and socially responsible (not encouraging unsafe behaviour). Influencers must clearly label content that has been paid-for or for which they have received gifts/ loans.

  • When are the rules enforced?

Simply put, when the rules are broken. If an advert is misleading, dishonest and socially irresponsible then the CMA can take action. The CMA, unlike the ASA, can take action against individuals.

  • Powers of punishment

The CMA can take individuals to court, capable of imposing heavy fines or even jail sentences of up to two years.

  • Additional advice

The website lays out, in detail, the regulations about what you can and can’t do. Chief executive of the CMA says ‘you should be able to tell as soon as you look at a post if there is some form of payment or reward involved, so you can decide whether something is really worth spending your hard-earned money on’.

 

Right, that’s the heavy legal legwork out the way. With the rules in mind, let’s take a look at those who fell short of the law and the repercussions they faced.

Zoe Sugg (Zoella), Rita Ora and model Rosie Huntington-Whiteley

Following warnings from the CMA, big name stars such as Rita Ora, vlogger Zoella and model Rosie Huntington-Whiteley have agreed to change their ways and clearly state if they have received payment or gifts for endorsed products. This agreement has allowed them to avoid further punishment. However, if they slip up again the stars can be taken to court and face a hefty fine or jail time. 

Reality star Jemma Lucy wasn’t so lucky. Although the ASA do not have the powers to enforce fines or prison, they were able to ban her post. The instagrammer was pictured drinking a branded weight loss coffee while pregnant. The post broke several rules, including encouraging unsafe practices whilst pregnant and not being declared as an ad. A banned post seems like a slap on the wrist compared to jail time. However Jemma Lucy’s reckless advertising ploy was splashed across news outlets and condemned on social media. Her reputation took a huge hit as a result, and it is likely that followers and brands will be wary of trusting her again. 

Jemma Lucy’s endorsement of weight loss coffee

Do not underestimate the value of trust! It is what your own personal brand is built on. People will not be influenced by you if they do not trust your opinion or believe in your integrity. Reckless advertising will quickly degrade any hard earned faith. 

 

Who Cares?

Unfortunately, some influencers and brands do not seem to get the message. They evidently do not care about misleading consumers or potentially endangering their health. 

Dietary products are a continuous thorn in the side of the ASA. As discussed in Part One of this feature, 90% of social media influencers are posting inaccurate health information. Geordie Shore star Sophie Kasaei is one of these people. In September 2017, the ASA upheld a complaint regarding one of her ads. It was an endorsement for the diet drink Flat Tummy Tea, making unverified claims that the product induced weight loss. However, there were no direct consequences for the star and she went on to do it again a few months later. 

Olivia Allen, an influencer talent agent, highlights how reality stars are more likely to take a risk and post deliberately misleading adverts. She points out that “if something goes wrong and they need to delete the post and give the money back, they’ve still got a stream of income [in the form of reality TV].”

As a consumer or follower, be aware of influencers and brands that have a history of taking risks. You can search the ASA website for brands with complaints upheld against them. Be a responsible consumer. 

It is not just influencers who are irresponsible. Brands themselves are knowingly misleading consumers. A director of a small company was interviewed by Olivia Allen. The company makes small boxes full of influencers’ favourite products which are then sold to fans. The brand and influencer split the revenue, though their collaboration is not disclosed to the consumers. The director is not worried though, saying “What can they do? Unless they can put me in prison, I don’t care”. Well, with advertising laws fast evolving to keep pace with influencers, the director may start to care very soon. 

Worryingly some of the most influential social media stars go unpunished. Fyre Fest is infamous and needs no introduction. Kendall Jenner was not prosecuted, or even questioned or vilified, about her $250,000 endorsement of Fyre Festival. 

Social media star Matthew Spade, who has over 50,000 followers, has his say on the matter. He believes that “people owe it to their audience to be as transparent as possible, and it makes for an easier relationship with your audience if everything is laid out on the table”. Wise words Matthew. Not all influencers are reckless. 

 

The Race to Rock Bottom 

Fake it till you make it. Throughout the feature, we have discussed how some influencers do not tell their followers whether a post is an ad, for fear of disengagement.  On the flip side, there are younger influencers desperate to let their followers know a post is sponsored, even if it isn’t! This is leading towards a dangerous race to the bottom.

It is becoming a popular trend for wannabe influencers to pretend they have endorsement from a brand. They do this to gain supposedly more credibility. Palak Joshi is one of these influencers. The hardest deal to land is your first deal, as companies want to see your past campaign work. As a result, non-sponsored ads are being deliberately tweaked and worded in a way to mislead followers. Palak gives an example: “Instead of [captioning] ‘I need coffee to get through the day,’ mine will say ‘I love Alfred’s coffee because of A, B, C,’”. 

The lines are becoming blurred for the consumer, and fakers are rapidly degrading the industry they are so desperate to be a part of. Fake ads are providing lots of companies with free promotion. This decreases the need for companies to pay influencers for advertising, and drives down the price they are prepared to pay for promotion. And the desperation to get a foothold on the ladder has led to some people wildly devaluing their services. CJ OperAmericano is a 22 year old TikTok star. She recently lost out on a brand campaign to someone who offered to do it for a tenth of the price. CJ said people now treat brand deals “like a verification badge … I don’t think people know they’re screwing each other over”. 

 

A final word of advice … be responsible!

The key takeaway themes from this feature are to be honest and genuine. Maintain faith and trust with your followers and they will reward you. 

View the overall picture. A fake or hidden promotion may gain you quick likes and fast money, but in the long run your followers will switch on to fraud. Mislead them and any trust you gained will never be fully rebuilt.

The trust and faith of thousands is placed in one person. That is influencing. That is what it is built on. No, you are not Jesus, but you may become very influential. You owe it to your followers to be as transparent and honest as possible. 

To finish off, a Mobile Marketer report stated that brands commonly look for influencers who have a high engagement with their followers. This usually means an influencer with a lower total following – the highest engagement were those with 1,000 to 5,000 followers.

Take away tip. Don’t focus on quick likes and phony followers. Build a rapport with those who follow you. Be grateful. They are your key to success. Without your followers, you will not succeed as an influencer. Period. Treat them well. 

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