Under the influencer: ASA lays down ad law
Vloggers reminded marketing rules apply to them too
Influencer marketing has long been the digital equivalent of William Golding’s Lord of the Flies — a hidden enclave inhabited by a troupe of youngsters governed by laws made up on the go.
The absent parents — in this case, the marketing establishment — have finally intervened offering a stern reminder the rules of the game apply no matter where you’re playing.
In her quarterly status update, ASA chief executive Hilary Souter confirmed that the ASA had received a 78 per cent increase in complaints compared to the same time in 2020.
Many of these complaints have been about influencers identifying ad content when they are using their channels to endorse products or services.
The sharp rise in complaints isn’t a random kink in the statistics.
Zoe Virtue, the head of digital and social media at PR firm Mango, attributes it directly to last September’s release of the ASA guidelines on marketing in this space.
“Before then, we didn’t have any set guidelines,” she says, explaining that the introduction of the rules has given greater clarity not only to the audience but also to influencers, who weren’t entirely aware of their responsibilities.
Virtue says many influencers she works with have since taken to social media to discuss the guidelines with their audiences and let them know when and where they will be tagging content as ads. Under the rules, any influencer content controlled directly or indirectly by an advertiser, with the intent to influence the viewer will be deemed an ad.
The definition of “payment” for content has been left purposely broad to ensure a catch-all to include the influencer staples of gifts, free events and airfares.
The implication here is that influencers need to disclose these commercial ties if they’re doing any posting that could be seen to nudge viewers in the direction of the companies that gave them the freebies.
As is often the case with any efforts to create rules in digital, the deliberate breadth of this definition has created a contentious grey area. Influencer Simone Anderson, no stranger to controversy, recently found herself at the centre of this murky space in an ASA decision determining that an Instagram story post in which she donned a top emblazoned with the name “Aim’n” should have been tagged as an ad.
The picture was not part of a planned media blast nor was it linked to any scheduled affiliate promotions, and yet the ASA board still determined that the post qualified as an ad.
Virtue says this sets a worrying precedent in that it could affect so many aspects of endorsement deals, well beyond the remit of new-age influencers.
She points to the example of a sports star, who may have been gifted a car. If at some point they post a picture of a private trip they’ve taken that just happens to show the vehicle, does this then become an ad?
What about a celebrity going for a walk in Nike shoes or drinking a Pepsi at a local restaurant? Where does the personal moment stop and the commercial affiliation begin?
Virtue also points to the seeming double standard seen in traditional media, where news presenters can be dressed in clothing from a certain brand for an entire bulletin, only to have it disclosed right at the end.
Asked about some of these examples, Souter admits that there will be long discussions about where the line sits between personal and commercial. If rules are too loose they can be used as an escape route. On the flip side, you don’t want a situation where the entire personal life of a sports celebrity is tagged as one big ad (which admittedly wouldn’t be a stretch for some).
She recommends the application of a “reasonable consumer” test which essentially asks what a reasonable person would think if they saw a piece of content. Would they construe it as an endorsement? And if so, should they be made aware that a relationship exists between the company and the influencer?
Souter also draws a distinction between the influencers and media personalities like news presenters. She says that influencers often act as a direct conduit between a company and the audience. The same cannot be said of anchors, whose primary role is to present the news.
Souter adds that if consumers are concerned about anything they see on any form of media they should lodge a complaint to have the ASA board make a determination.
The most powerful tool in the ASA’s arsenal has historically been the ability to order the removal of an advert in the middle of a campaign cycle. In the worlds of television, radio, newspaper or outdoor advertising this could cost hundreds of thousands of dollars in lost creative that was meant to run for weeks or months.
But this tool is rendered relatively toothless in the ephemeral world of influencer marketing, where posts sometimes disappear after 24 hours never to be seen again — as was the case in Anderson’s Instagram story.
Despite this shortcoming, Souter doesn’t think the ASA needs additional powers to impose fines on influencers who break the rules.
“The role of the ASA is to correct behaviour and I don’t think fines will necessarily do that,” Souter says.
“It will just add more complexity and slow down the process.”
Consumers, she adds, already have access to the sharp teeth of the Commerce Commission when it comes to the most flagrant examples of fraud and misrepresentation in advertising.
The media’s habit of drawing attention to wrongdoings also plays a useful regulatory role in that negative coverage can be deeply damaging to influencers’ reputations and their relationships with commercial partners and their audiences.
The problem is that people can only complain about what they see — and the nooks and crannies of social media are becoming increasingly niche and sheltered. Who beyond the age of 30 really even knows what’s happening on TikTok or toy review YouTube channels?
As much as we try, we simply can swat away this Lord of Flies. It just keeps buzzing around and finding new places to cause its unique brand of digital havoc.
Under the rules, any influencer content controlled directly or indirectly by an advertiser, with the intent to influence the viewer will be deemed an ad.