Influencer marketing & advertising standards — common breaches & how to avoid them

Influencer marketing continues to grow rapidly but remains subject to strict advertising rules and regulations. As a result, both influencers and brands are facing heightened scrutiny from the Advertising Standards Authority (ASA).

Here, Simpreet Kaur explains the main issues that influencers and brands need to consider before entering into partnerships, highlights recent breaches of advertising codes and provides an overview of the key clauses that should feature in influencer contracts. 

Transparency in influencer advertising — recent ASA rulings 

According to the ASA’s guidance, when an influencer and brand become commercially connected, any content featuring the brand needs to be clearly labelled as an advertisement. This is a requirement under consumer protection law which allows consumers to make informed choices — without this transparency, advertisements risk misleading them. 

In a recent ruling, the ASA found that an influencer had breached the advertising rules when she included an affiliate link on her Instagram story to an infant formula product sold by Sainsbury’s. This would earn the influencer commission when the product was purchased through the link. However, while the influencer did include the term ‘Aff’ in her post, the ASA held that this wording didn’t sufficiently identify the link as an advertisement. To make the commercial intent clear upfront, influencers should include a clear and prominent identifier such as ‘#ad’ when promoting affiliate links. 

Another recent ruling by the ASA involved an influencer who’d included a clickable link on her story to direct consumers to her LTK shop page. The ASA acknowledged that once consumers landed on the page, built-in text on the platform stated ‘paid links’ — but this was only visible to consumers after they’d clicked the link. As consumers had to engage with the advertisement before it became clear that the influencer would receive commission from purchases, the ASA concluded that this wasn’t enough to make the story obviously identifiable as an advertisement. 

ASA report reveals gaps in disclosure

Earlier this year, the ASA published a report on influencer advertisement disclosure, examining how often influencers are following transparency rules when their posts are promotional. 

The ASA analysed over 50,000 pieces of content and found:

• 57% of the influencer advertisements abided by advertising rules on disclosure.
• 9% of advertising content did attempt to use a disclosure label but the language used failed to make the commercial nature of the content clear.
• 34% of the influencer advertisements included no disclosure at all. 

Both brands and influencers have a responsibility to ensure that their content clearly states that the consumer is being advertised to. Failure to disclose a commercial relationship leaves both parties at risk of action from the ASA. 

Importance of contracts & key clauses

As influencer marketing becomes more popular, it’s important for both brands and influencers to make sure that they have a robust contract in place to outline and protect the obligations and interests of both parties. 

The Made by Mitchell (MBM) saga highlights the importance of contracts and raises several important considerations for brands engaging in influencer collaborations. In 2023, Malachi — a hopeful makeup artist — was promised a collaboration with MBM after winning a contest. However, due to the absence of an adequate contract, the relationship between Malachi and MBM suffered from a breakdown in communication, unmet expectations and legal uncertainty, attracting a large amount of unwanted attention online. 

The fallout between Malachi and MBM emphasises the importance of a well drafted contract — but what are the key issues that brands should consider? 

Below are the key clauses that should appear in all influencer contracts:

1. Scope of agreement — define the deliverables and any specific requirements of the influencer (e.g. posts, appearances and timelines).
2. Exclusivity arrangements — outline any arrangements to prevent the influencer from promoting competing brands during the campaign.
3. Fee arrangements & expenses — consider the specific payment terms, schedule and method of payment. There should also be detail within this clause on who covers production/travel costs.
4. Use of intellectual property — clarify ownership of rights to any content.
5. Termination rights — outline any grounds for termination (e.g. breach or reputational harm to the brand). 

Talk to us

Our specialist lawyers have extensive experience in influencer-related legal advice and support including how to avoid breaches of advertising rules (the CAP Code) and influencer/collaboration agreements. 

Talk to us by calling 0333 004 4488, emailing hello@brabners.com or completing our contact form below.