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Most UK businesses place a high priority on advertising their goods and services. After all, what is the point of delivering a good product if potential customers do not know about it? However, from a legal perspective, there is a difference between lawful influencer marketing and unlawful paid online reviews. This article will explore the key differences between lawful and unlawful advertising methods, so your business stays on the right side of the Advertising Standards Authority.
Advertising Standards Authority
The Advertising Standards Authority (ASA) is the UK’s independent advertising regulator. They enforce advertising rules and regulations across physical and digital media and exist to ensure consumer protection through the abolition of false advertising.
The main principles of the ASA include ensuring that advertisements are:
- honest;
- accurate;
- lawful and decent; and
- socially responsible (not advertising unlawful or anti-social behaviour).
If the ASA finds that you have published advertisements that are not honest or lawful, such as fake reviews, it will consider appropriate sanctions. The most common sanctions include:
- a demand to remove deceptive advertising;
- negative press release about your advertisement on the ASA website; or
- if serious, a referral to a third party (such as Trading Standards).
What is Influencer Marketing?
Influencer marketing involves asking an ‘influencer’ to post positive comments about your product or services on their social media platforms.
Influencer marketing is lawful if done in line with ASA rules. The main rule is that influencers and businesses must be honest when publishing advertisements. For example, social media posts made in partnership with an influencer and business should be marked ‘#ad’, ‘#advert’ or ‘#advertisement’ to ensure it is not mistaken for an unpaid, organic post.
Influencer advertising should also avoid any dishonest or fake online reviews. For example, any YouTuber taking part in a car review advertisement should not claim a false top speed or inaccurate 0-60 times.
Having an influencer agreement in place is a helpful way of demonstrating that the advertising arrangement between your company and the influencer is truthful and legal.
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What is an Influencer Agreement?
An influencer agreement is a contract between a business and an influencer confirming binding terms between the parties. Whilst their contents differ, it is common to record some of the following points:
- whether your business requires them to avoid advertisement of rival brands for a set period;
- whether the influencer can use stock images of the product or can take their own (and if they own those images);
- that the influencer must clearly state that posts are advertisements by use of appropriate wording or hashtags;
- how many posts the influencer must make and the fee arrangement for each; and
- whether the influencer will receive commission payments for sales made through affiliate website links.
What Do the ASA Class as ‘Unlawful Paid Reviews’?
Unlawful paid reviews include advertisements that:
- are not declared as being advertisements;
- are paid in cash ‘off the books’;
- performed in exchange for a free product or service; or
- online fake reviews that include dishonest statements.
The above list covers a wide range of circumstances. Some examples of unlawful paid reviews include the following:
- an individual receiving a complimentary stay in a hotel on the express condition that they post unmarked social media posts and a 5-star review on Trip Advisor;
- a social media personality posting that they love a specific food product when, in fact, they are allergic to it;
- an influencer receiving pay to make social media posts about ‘loving’ a product without marking it as an advertisement, so their followers mistake it as a genuine post; or
- an individual being paid a lump sum by a hotel chain to post 5-star positive reviews to numerous review sites about five hotels they have stayed in.
The ASA will class advertisements as unlawful if they are inaccurate, lack honesty and are not socially responsible. It aims to protect the average consumer from misleading advertising and fake consumer reviews.
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Key Takeaways
No business owner wishes to suffer negative media attention due to illegal advertising or unfair commercial practices. Instead, it is in your company’s interest to ensure that all marketing communications align with ASA requirements. Where your business engages with influencers, setting parameters on their advertising content within an influencer agreement is best practice.
If you need help ensuring lawful advertising for your business, our experienced e-commerce and online business lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
With the rising popularity of social media and ‘influencer’ accounts, it has never been easier to influence others through fake testimonials and positive fake reviews. In fact, some businesses have been found to encourage individuals to post negative reviews about their rivals on digital platforms. Naturally, this limits fair competition by attacking another company’s digital reputation and is a clear breach of advertising regulations. As such, the ASA aims to regulate online advertising.
Thankfully, no. Most online platforms, such as Amazon, require evidence that you have ordered the product in question. However, internet platforms are not infallible and some review sites, such as Trip Advisor, have spent a great deal of effort trying to avoid unfair competition in recent years.
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