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Influencers’ failure to comply with advertising rules is “unacceptable”

Last Thursday, 18 March, the ASA reported on the findings from a three week monitoring exercise that it undertook last September, to review the Instagram accounts of 122 UK-based influencers to assess whether advertising content was being properly disclosed. That involved assessing over 24,000 Instagram Stories including posts, IGTV and reels to check compliance rates. The advertising rules apply across all platforms and non-broadcast media but this monitoring exercise focused on posts on Instagram because complaints to the ASA about influencer ad disclosure were found to relate to this particular platform.

The ASA found that only 35% of advertising stories were clearly labelled and obviously identifiable as such. They have said that “the level of non-compliance is unacceptable”.

The ASA has contacted all the influencers, as well as a number of brands, and put them on notice that if future spot checks that the ASA carries out on any platform reveal problems, they will take enforcement action. That might include promoting their non-compliance on a dedicated page on the ASA website, promoting non-compliance through the ASA’s own targeted paid search ads or working directly with the platforms and the Competition and Markets Authority on further enforcement action.

It is clear that the ASA takes this issue seriously. It lacks the teeth it needs to impose fines, but it won’t be shy to name and shame those that don’t comply with the rules. In parallel, the Online Harms White Paper (published in December 2020) which sets out the Government’s vision for online safety, includes a new regulatory framework to tackle a broad range of harms including hate crime, terrorism and violence online, but also cyberbullying, the online abuse of public figures and the spread of disinformation. Ofcom will have a range of enforcement powers, including the power to levy substantial fines of up to £18m or 10% of global turnover.

The new regulatory framework will apply to companies whose services host user-generated content (including social media services, video sharing platforms, online instant messaging services etc), however it is clear that the definition of user-generated content will encompass “organic and influencer adverts”. This includes images or text posted from users’ accounts to promote a product, service or brand, and may or may not be paid for. The paper says that as these are indistinguishable from other forms of user-generated content, it is important, for clarity and consistency, that online harms safety systems and processes apply to these advertising posts.

Our interpretation of this is that the companies that run social media services etc will be subject to compliance (and therefore fines for non-compliance) with the legislation, when it comes into force, rather than influencers / brands themselves. However we can expect those social media services to run a much tighter ship going forward.

The Online Safety Bill, which will give effect to the regulatory framework outlined in the White Paper, will be ready in 2021.

For more information on the ASA’s findings on use of Instagram, please see the ASA’s website here.

The Online Harms White Paper is available here.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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