Social Media Influencers and Staying Legal

27th April 2020

If you are a social media influencer, congratulations!  You have managed to build a platform on your social media account which has earned you a flock of loyal followers, you have access to the largest and most varied consumer market on the globe, and brands furnish you with freebies and opportunities to work with them to represent their brand.

Coronavirus and Social Media Influencers

Whilst the devastating effects of coronavirus tremble across the globe, it has created opportunity in some sectors, including those working with social media.

In fact, with social media use becoming the primary form of contact in this new world we find ourselves in, social media influencers have become more powerful than ever before. Social media companies are reporting a record-breaking number of downloads of their applications.  The number of active users of TikTok has increased from 650 million to 800 million during the early months of 2020. In addition, WhatsApp, Facebook and Instagram have recorded an increased usage rate by up to 40% for some of its users.

Another change caused by COVID-19 is that with traditional forms of content production at a halt due to social distancing measures, brands are reaching out to social media influencers to produce content for them, creating new opportunities for social media influencers.

Legal Pitfalls to Watch out for when Releasing Content

Like most social media activity, social media influencers have garnered a considerable amount of attention from the press, and also from UK regulators. Indeed, the UK’s consumer regulator (the Competition & Markets Authority) with support from the UK’s advertising regulator (the Advertising Standards Agency) opened an investigation into concerns that certain social media influencers were not clearly disclosing when they have been paid or incentivised to promote goods or services.

It is therefore important that social media influencers keep up-to-date on the latest rules affecting them.

As a starting point, social medial influencers should follow the below tips:

Make clear when posts are Ads: Social media influencers are regularly approached by brands to post on their social media accounts and promote the brands’ products or services.  If you are paid to make a post, that post becomes subject to consumer protection law. Consumer protection law requires posts to be clearly identified as paid-for content.

At a minimum you should prominently label your post with #AD in a place which is obvious to viewers on your social media profile. You should also consider using any branded content tools available on your social media account.

For more information on how to make clear that paid-for posts are ads – please refer to the latest guidance issued by the Competition & Markets Authority and Advertising Standards Agency here.

Misleading statements: Any marketing communications should not mislead viewers.  This includes any communications made via social media to your followers promoting yourself or any other brand.

You should therefore make sure that any objective or factual claims made about products or services are backed-up by evidence.

There are various specific rules in place to further regulate certain types of claims made in the health, beauty and slimming industries and influencers should pay close attention to these. If you are not aware of these rules you might inadvertently find yourself subject to investigation by the regulators. For example, the Advertising Standards Agency’s recent investigation into Lauren Goodger and Katie Price for promoting BomBod’s weight loss products.

Prize draws and competitions: If you decide to run a prize draw or competition from your social media profile, make sure participants have available to them all significant terms and conditions of those promotions such as how to participate, the start date and the closing date.

Know your audience: Age-restricted products or services, such as alcohol or gambling, must not be advertised to under-18s (or under-16s in the case of lotteries).

The rules also prohibit advertisements of some age-restricted products from prominently featuring an individual who looks under the age of 25.

So, if you have a large following of youngsters and/or look under the age of 25 you might want to think twice before agreeing to partner up with a liquor or gambling company.

Where can you get the information you need.

As you can see there are several rules and guidelines which social media influencers need to follow to stay on the right side of the law.

The relevant rules and guidelines are often updated to reflect the development of social media advertising. We suggest you regularly check the Advertising Standards Agency’s website for any updates.

You can also speak to us if you have any questions.  We have experience working with social media influencers and advising on compliance with the various advertising laws in place.

For further information, our Technology team are on hand to assist you. Please don’t hesitate to contact our Head of Technology, Simon Halberstam, or Associate in our Technology department, Ben Ifrah.