I think we can all accept that, for most brands, advertising has moved beyond traditional print and media. Instead consumers are constantly being told what to buy by a wide array of social media influencers. So it’s no wonder that organisations such as the Advertising Standards Authority (ASA) are doing their upmost to control the endless stream of posts and ensure that paid endorsements are clear. This article written by the MIA’s intellectual property partner, Briffa, explains how a recent ASA ruling has developed the understanding on this subject a little further…
These influencers might be mainstream celebrities such as actors and musicians or they might be “normal” people who have made it big online, largely due to the content that they post. For the majority of influencers their revenue is generated by advertising, normally product endorsements. Basically the greater their following, the higher their fees.
In terms of what happened in this case; a well know blogger and influencer, Sarah Willox Knott (@thismamalife) posted a picture of herself in bed with a packet of sleeping tablets and the comment:
“[AD] Sleep. Who needs more of it? I’m really lucky in that I don’t actually need a lot of sleep to get by and manage to cram all sorts into my evening, being the night owl I am. Every now and again though, daily life can get a bit overwhelming and I often find it’s my sleep that ends up suffering. I end up going to bed even later than I usually do and am not able to fall asleep. The worry of not sleeping then adds to it all and I end up a complete and utter zombie!! Last time this happened I tried out Phenergan Night Time, which really helped. It is a pharmacy only, short term solution to insomnia for adults which works by inducing a sleepy effect thanks to its active ingredient, promethazine hydrochloride, helping you to sleep through the night. Do you guys fall asleep easily or are you night time over thinkers like me? #AD #sleep”.
So what’s the big issue I hear you ask? Well this post resulted in a single complaint to the ASA and it turns out that it’s a breach of the advertising code for a brand to use a celebrity to endorse a medicine. The brand owner took the interesting approach of arguing that the influencer wasn’t a “celebrity” (tricky because they had agreed to pay for an advertising service so they must had seen a value) and suggested that a blogger with only 32,000 wouldn’t fall within the definition.
The ASA disagreed and said that the follower count was sufficient to indicate the attention of a significant number of people, therefore falling within the definition of a celebrity. As such, given that the post clearly endorsed the medicine, it breached the rules.
The ASA is to be commended for making a tricky decision on what constitutes a celebrity however its worth noting that an influencer with fewer followers could still within the definition (although my 100 followers probably won’t justify red-carpet status). In terms of liability, although this ruling implied that the brand was largely liable for the content of the ad, normally brands and influencers are held jointly responsible for online breaches of advertising rules.
So, whether you’re a brand planning to jump on the social media advertising bandwagon, or you’re a budding influencer with more followers than me, it’s worth taking advice before posting #ads and ensuring that you don’t fall fowl of the rules.
Don’t forget that MIA members benefit from a free thirty minute consultation and special rates on all intellectual property and general commercial matters. Contact firstname.lastname@example.org for the details if you’d like someone to ease your legal headache!