When is it a(n) #ad?

Kensington Swan’s Charlotte Henley and Emily Tombs share top tips for working with social media influencers

When is it a(n) #ad?

The use of social media influencers by advertisers to sell products is continuing to rise in popularity. Influencers – popular online personalities, with numerous followers on social media platforms – market goods and services to their followers. Content generated by influencers can appear credible, authentic, and non-commercial. 

However, Rule 1 of the Advertising Standards Authority (ASA) Code of Ethics requires that advertisements should be “clearly distinguishable” as such, “whatever their form and whatever the medium used.”

Further the 2018 New Zealand ASA Guidance Note on Identification of Advertisements sets out a two-step process to determine whether an advertisement has been clearly distinguished:

  1. Is the content being generated in relation to the brand’s product or services an advertisement?
  2. If the content is an advertisement, is it appropriately identified to the relevant audience?

Crucially, all parties are responsible for ensuring that the audience is aware they are engaging with an advertisement.

Is it an ad?

The popularity of native advertising – advertising which appears to be part of an influencer’s regular content – has made it difficult for audiences to tell when they are being advertised to.

In the Guidance Note, the ASA notes that a commercial relationship can exist without money (or any payment) changing hands. Instead, the key test is how much direct or indirect control an advertiser has over the influencer’s content.

One measurement of control is whether an advertiser has a right to review, edit or create the copy.

If so, is it appropriately identified?

Advertisers and influencers should be aware that native advertising is likely to require express “identifiers”. This may include the use of hashtags such as “#ad, #sponsored and #promoted” or an obvious call to action (e.g. “visit their website to learn more”).

Top tips for advertisers working with influencers:

  1. Consider the context of the advertising, particularly with native advertising, as the consumer may not identify the content as an advertisement.
  2. Communicate clear responsibilities for disclosure on advertised controlled posts. Ensure that disclosure is placed in a prominent position.
  3. Both the influencer and the advertiser are responsible for ensuring adequate disclosure.

By Charlotte Henley, partner, and Emily Tombs, law graduate, of the National Intellectual Property team at Kensington Swan.


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