Once an Influencer, always an Influencer

When a brand enters into a commercial relationship with an influencer, all posts promoting the brand, whether sanctioned by the brand or not, are likely to be regarded as marketing communications and must therefore be obviously identifiable as such.  Influencer contracts should therefore ensure that not only brand-sanctioned posts are identified as ads, but also require that all posts referencing the brand are identified as marketing communications.

Background

The ASA today (4 November 2020) upheld a complaint against a post published by the influencer, Emily Canham, on her TikTok account, in which she used a ghd branded hairdryer and straighteners with a caption promoting a 20% discount on ghd's e-commerce site if the consumer used the code "EMILY".

The complainant argued that the post was an advertisement but was not obviously identifiable as such.

Why is the adjudication of interest?

The interesting feature of this investigation is that Jemella Ltd t/a ghd had entered into a contract with Ms Canham in which she agreed to provide two videos (on TikTok and YouTube) containing reference to the promotional discount code “EMILY”.  However, this particular post had not been one of the posts required by the contract and ghd had neither seen nor approved this TikTok post.  In addition, Ms Canham had neither been paid for the post nor received any commission from related sales.

What was the ASA's view?

The ASA accepted that this particular post was not paid for, however, they focussed on the point that the post featured the same promotional code that was referenced in the contract between ghd and Ms Canham. 

Therefore, even though Ms Canham received no commission from sales generated through the use of the promotional code, because of that connection to the contract, the ASA decided the post was an ad and that the promotional code had appeared as part of a call to action by Ms Canham encouraging consumers to buy ghd’s products.  Consequently the commercial nature of the content should have been made clear before consumers used the promotional code.  This could have been achieved by use of “#ad”, to clearly identify the post as an ad.

Lessons to learn

This adjudication reinforces the strict approach taken by the ASA when determining whether a commercial relationship exists between a brand and an influencer.  In this case, the brand was seemingly unaware of the post and certainly made no "payment" for the post itself.  However, there was clearly a commercial arrangement in place, demonstrated by the influencer contract itself.

This adjudication illustrates that when a brand enters into a contract with an influencer to formalise their arrangements, the parties need to take extra care to ensure that the influencer's posts comply with the terms of that contract because even posts that are made outside the strict contractual terms will be regarded as marketing communications.

Therefore once a brand has entered into any form of commercial relationship with an influencer, the parties should ensure that all posts, whether or not specifically required under any contract, are treated as marketing communications and obviously identified as such.