Misleading advertising is the use of false or unproven information to advertise products or services to consumers and clients. A false advertisement can further be classified as deceptive if the advertiser deliberately misleads the consumer or client, as opposed to making an honest mistake. This is against the law in the U.K. and can have repercussions on the brand if action is taken by regulators such as the Competition and Markets Authority (CMA), Advertising Standards Authority, and Trading Standards.
In this day and age of social media, a new brand of advertising and marketing has emerged. “Influencers” include popular bloggers, vloggers, celebrities such as sports and music stars or actors/actresses, and social media personalities who can have a lot of influence over people’s buying decisions if they promote a product or service in their posts. They can be engaged as brand ambassadors to promote products and services of other brands at a lucrative price. People need to know however if influencers have been paid, incentivized, or in any way rewarded to endorse or review something in their posts rather than leaving an honest testimonial due to actually buying and liking a product or service. It’s therefore important and now required under law, that they make this clear to their followers. This includes when a product or service has been given to them for free.
The Committee of Advertising Practice (CAP) provides guidance on how to label ads correctly. It explains how to comply with consumer protection law and the Advertising Codes enforced by the Advertising Standards Authority (ASA). Likewise, the BCAP Code applies to online and broadcast advertising.
When influencers have been paid, given, or loaned things, any form of reward, including money, gifts of services or products, or the loan of a product, is ‘payment.’ They receive freebies because of their high public profile and because brands or businesses hope they might post about them in return. If they are given discount codes, competitions, or giveaways, they need to make it clear in their posts as that outlines their relationship with that brand.
Additionally, consumer protection law requires that posts must not be misleading. Without appropriate disclosure, people may reasonably assume that an influencer who is promoting, endorsing, or reviewing a product or a service, does not have a relationship with the businesses they are promoting. They may think that an influencer has purchased the product or service themselves and therefore considers it good value for money or of good quality. Therefore, full disclosure is key.
It is not likely that there will be just ‘one way’ of explaining your relationship to a brand. The CMA takes the view that ‘Advertisement Feature’ or ‘Advertisement Promotion’, are useful descriptions, but it has seen a range of other wording, (including #Ad, #Advert, and using the ‘Paid Partnership’ tool on Instagram in addition to these hashtags), which convey the appropriate messages simply and effectively.
Scarlett Dixon, who posted a photo of herself in her bedroom, with multiple heart-shaped balloons floating around her bed, pancakes (later revealed to be tortilla wraps) and strawberries set beside her, and (right at the back of the photo) a bottle of Listerine mouthwash on her bedside table, is not the first to be scrutinized for her lack of transparency about paid adverts. Indeed, Made in Chelsea star and fellow Instagram influencer Louise Thompson was recently reprimanded by the ASA for failing to make
Practices we have seen, which are not considered to go far enough to comply with the legal requirements, include:
• tagging a brand or business in either the text, picture, and/or video of a post without additional disclosure
• tagging a gift from a brand in either the text, picture, and/or video of a post without additional disclosure
• using discount codes in a post without additional disclosure
• using ambiguous language without additional disclosure in a post (for example ‘thank you’; ‘made possible by’; ‘in collaboration with’; or ‘thanks to…’)
• unclear use of hashtags, for example:
• using #sp; #spon; #client; #collab; etc..
• adding #ad directly after the name of the brand or business (for example #[BRANDNAME]ad)
• when the disclosure (for example #ad, #advert) is not prominent because it is hidden at the end of or among other text and/or hashtags
• product placement where there is an associated (and undisclosed) payment or another incentive
• disclosing the commercial affiliation only on an influencer’s front, home, or profile page
The main thing to remember is that you need to make it obvious. Any label (or other means) you use to highlight advertising content needs to be upfront (before people click/engage), prominent (so people notice it), appropriate for the channel (what can you see and when?) and suitable for all potential devices (it needs to be clear on mobiles and apps too!). This means that burying the label in a sea of hashtags, putting it where it can only be seen by clicking ‘see more’, having to click to view the full post, or only being able to tell a video is an ad by watching it, really isn’t going to cut it. We recommend including the disclosure at the very beginning which might mean at the start of the post, in a title or thumbnail, or on an image (if that’s all people see at first). Put yourself in your audience’s shoes – if you didn’t already know about your relationship with a brand, would you be able to tell immediately and without a shadow of a doubt that a specific post you had made was, in fact, advertising?
The simplest way for a brand to ‘control’ the content is by telling you what you have to say, e.g. if there are particular words, phrases, themes, or ‘key messages’ you need to include, or you have to use a particular hashtag. This doesn’t just apply to text or words – if the brand has specified what needs to be in an image, required you to include a specific action in a video, or specified the type of content you need to create (e.g. ‘unboxing’ the featured product), this is likely to count as ‘control’. Requiring you to post a specific number of times, on certain dates or at particular times could also count as ‘control’. If a brand reserves the right to check/approve the content before it’s posted and/or to ask you to change it, this could similarly count as ‘control’. They don’t need to actually ask for changes – if they could, and you would have to do it (e.g. the contract means they could stop you from posting it), that’s enough.
In 2016, the Competition and Markets Authority (CMA) took action against an online marketing company that posted fake reviews on behalf of its clients. The ASA publishes brands that are defaulters and that affects the brand goodwill and the campaign where lots of funds have been spent can be stopped instantly so Prevention is better than Cure.
The company wrote fake reviews on behalf of small businesses from a wide variety of sectors and posted them on different websites.
Online reviews play an important role in helping potential customers decide whether to buy a product or service. Writing or commissioning fake reviews could lead to civil or criminal action. Once discovered, it can also damage the image of the brand and erode customers’ trust in reviews and review sites.
What do you need to do if you are a business whose products are being reviewed?
• Don’t pretend to be a customer and write reviews about your products or other businesses’ products
• Don’t commission third parties to write fake reviews – you may be liable for their actions
• If you are working with a third party – such as a PR, marketing or Search Engine Optimisation (SEO) agency – make sure they also follow these rules
• Don’t offer inducements – money or gifts – to customers to write positive reviews about your business
What do you need to do if you are a PR, marketing, or SEO company working on behalf of someone else?
• Don’t write or arrange fake reviews on behalf of your clients – both you and your client risk breaking the law
• Ensure that your staff are adequately trained and your contracts, internal policies, corporate brochures, and other related materials accurately reflect the requirements of the law
• Inform your clients that fake reviews are against the law
If reviews you write or commission mislead consumers, you may be breaking the law such as the Consumer Protection from Unfair Trading Regulations 2008.
In a day and age driven by social media influence, it is vital to abide by the basic rules to influence responsibly as the impact of poor misconduct on society is detrimental.
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