Can advertising standards keep up with social media's influencers?

The Kardashian/Jenner sisters are undisputed social media royalty. Between the five sisters they have a combined following of 470.3 million on Instagram alone and their followers are mainly young women who aspire to a similar lifestyle, eagerly scrolling through the latest posts and leaving admiring comments. What a captive audience if one was to leverage this.

The reality TV sisters have indeed leveraged their vast social media audience, using it to promote products while not always being up-front about it. Non-profit US organisation Truth in Advertising has been keeping up with the Kardashians and Jenners: in late 2017 it was found that more than 200 of their social media posts "failed to clearly and conspicuously disclose material connections to brands or the fact that the posts were paid ads, as required by federal law" in the United States.

But surely in this day and age younger people are savvy enough to spot an ad? A 2017 report by UK communications regulator Ofcom on digital media literacy among 12- to 15-year-olds paints a different picture: while the majority are aware that Instagrammers, vloggers and other social media influencers may be paid to endorse a product or brand, the research shows "they are not always able to identify this in practice, especially on social media when it looks similar to the other content they see".

The reason this is pertinent to young consumers is because, unlike older generations, they have moved away from brand loyalty and towards individual recommendations. Edelman’s 2017 Global Trust Barometer found that 55 per cent of people rate individuals, specifically peers, more trustworthy than institutions. Millennials are therefore more likely to buy something based on the recommendation of their favourite Instagrammer than from a traditional television or magazine advertisement.

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This is all fine when it is above board but what does "above board" mean for Irish influencers who want to earn a living while being honest with their followers and fans? Mostly, it involves working with an advertiser who is adhering to the codes laid out by the Advertising Standards Authority for Ireland (ASAI), a self-regulating body.

According to Rosemary MacCabe, a writer and lifestyle blogger with more than 45,000 Instagram followers: “I don’t know, obviously, if anyone ever leaves out the relevant hashtags on purpose, but it does drive me mad when you see the hashtags buried among 10 million other hashtags. But I get it, at the same time. My followers are really lovely; they support almost everything I do. When I went through a breakup, I got such incredibly positive messages from so many people. But if I post an ad or a sponsored post, I get radio silence.

As for influencers who are new to the game - well, that's up to brands, isn't it?"

“As for influencers who are new to the game - well, that’s up to brands, isn’t it? Every single paid promotion should come with guidelines from the brand / agency involved telling you exactly what to do.”

Seán O'Reilly, a corporate lawyer with Cork-based firm Ronan Daly Jermyn, says it comes down to what the arrangement is between an influencer and a brand: "If a blog post or social media post has two elements: 1) payment and 2) is controlled by the advertiser in terms of content, they view that as a marketing communication. If you, as a blogger, were putting that through your channel – your blog or social media account – the view is that you are a publisher and then there are various provisions of the ASAI code that will apply to you."

Complaints

Indeed, several Irish influencers have been the subject of complaints to the ASAI, specifically in relation to disclosing when a post is an advertisement. Grace Mongey of Faces by Grace has been the subject of a complaint submitted to the ASAI in relation to promoting a brand without disclosing it was a paid promotion. Mongey had posted on Snapchat about a product called Miss Fit Skinny Tea, which the (anonymous) complainant said was "advertising a detox programme but was not clearly identifying that the posts were sponsored".

Snapchat, however, can be a bit of an advertising standards conundrum: snaps disappear after 24 hours so publication is not permanent in the way a blogpost or Instagram post is. Additionally, Snapchatters tend to post a flurry of snaps in quick succession and, in the case of Lisa Jordan of Just Jordan and her snaps from last year's Fast & Furious 8 premiere, she pointed out that she had used the #ad hashtag on all but a few of her later snaps, indicating there was no deliberate attempt to deceive followers. Similarly, Mongey had signposted some of her earlier snaps as ads. In both women's cases, the complaints were not upheld and a statement was issued by the ASAI.

“The ASAI said the [Just Jordan] content that was promoted was marketing communication and was subject to the code but the content that was self-posted independently was not. So the approach the ASAI are taking is that you have to look at each individual post and on something like Twitter, Snapchat or Instagram that makes life harder for everyone,” says O’Reilly, because in a collection of posts some may be subject to the code while some may not.

Transparency, according to the ASAI, is through the use of hashtags. In its "FAQ for Bloggers", published in April, it included a list of what it refers to as acceptable hashtags, comprising #ad, #sp, #spon, #workwith, #paidpartnership and #brandambassador. This is similar to the guidelines provided by the US Federal Trade Commission (FTC) that led to the Kardashians and Jenners having to go back and edit posts to include a clear indication of paid endorsement.

The FTC goes so far as to stipulate that it be declared in the first few lines of the Instagram post to avoid #ad or similar being tucked away at the end of long post: “When people view Instagram streams on most smartphones, longer descriptions (currently more than two lines) are truncated, with only the beginning lines displayed. To see the rest, you have to click ‘more’. If an Instagram post makes an endorsement through the picture or the beginning lines of the description, any required disclosure should be presented without having to click ‘more’.”

The ASAI is also very clear in this regard, making it clear that you cannot use vague terms such as #partner, O’Reilly says. “That might not necessarily communicate you have a paid sponsorship arrangement with a brand. So the key thing is it must be clear and identified as a marketing communication at the beginning. You shouldn’t have to click on a button before you see it is promoted.”

You shouldn't have to click on a button before you see it is promoted"

But who is ultimately responsible for the lack of transparency? Do we point a finger at the influencer or do we lay the blame at the feet of the advertiser? It’s not so black and white. On the one hand, as O’Reilly says, if the sponsored post is controlled by the advertiser – ie they approved the final copy – then they are not adhering to the ASAI code. On the other hand, the Snapchatter might post a snap without final approval, which, in the case of Mongey is what Miss Fit Skinny Tea claimed, leading to them dropping her as a brand ambassador; they added that “they could not control what the blogger did or did not do, despite any instruction from them”.

One could argue this is a cop-out on behalf of the advertiser as many of these influencers have agents who work with advertisers to ensure standards are met. Andrea Roche, founder of AR Model Agency, works with Irish influencers and stipulates: "As an agency we strictly adhere to the ASAI guidelines and strive to make sure the influencers we represent stick to these including #ad, #sp, AF etc in paid and collaborative posts."

"Brands need to consider what their end goal is before they engage with an influencer. Once they set KPIs [key performance indicators], they can contact my agency with a brief and we work up a bespoke proposal best suited to the brand and their needs," says Roche, who set up the first influencer agency in Ireland and has been working with influencers for three years.

Awareness

Because this is a relatively new area of advertising it is plausible that not all advertisers will know the lay of the land any more than influencers may when they are starting out. But this cannot be an excuse much longer. In relation to the latest ASAI rulings, chief executive Orla Twomey stated: "Over the past few years we have spent considerable time highlighting awareness in relation to advertising best practice within this space to ensure all relevant parties are equipped with the knowledge and resources to correctly identify commercial marketing content across their platforms."

In the last year, the ASAI introduced guidance on the "recognisability of marketing communications" to ensure that it was not only clear to all parties how a paid promotion should be labelled but also what it means to be 'paid'. Payment does not have to be cash: Instagrammers paid in freebies, some kind of compensation or reciprocal arrangement, or other non-cash perks such as free trips are still getting paid.

But are there any punitive repercussions for transgressing these guidelines? “In terms of consumer protection, what I would class as hard consumer law – the Consumer Protection Act 2007 – the CCPC [Competition and Consumer Protection Commission] are charged with enforcing that and the ASAI is a softer side. The principal remedy or action they can take is publication, effectively naming and shaming,” O’Reilly says.

“However, if you are a member of the ASAI and you don’t adhere to the code or abide by the ruling of the complaints committee there are enhanced sanctions as part of your membership, so that’s where the greater bite is – and most advertising agencies, brands and media outlets are probably members,” he adds.

So, while there are no legal repercussions for not playing by the rules for influencer marketing, there are clear codes of conduct and both social media followers and regulatory bodies have their eyes on this area. Besides, the biggest damage is to reputation and in this game, reputation is everything.