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No #AD again? You cannot be serious?!

Updated: May 23, 2019

This week sees another ASA ruling against an influencer who really ought to know the rules by now.

Louise Thompson from Made in Chelsea
Louise Thompson from Made in Chelsea

It's certainly not the first time Louise Thompson (of Made in Chelsea fame) has had her knuckles rapped for failing to disclose that she was paid to promote a product on social media.

The ASA ruling

This time round it was an Instagram story (a little harder for the ASA to catch as these disappear quickly) from May of Louise showing a brush product with an on-screen caption which stated “Obsessed with my glowspin! Swipe up for $100 off using my code ‘louiseglow Swipe up awesome @vanityplanetstore".

The problem? No disclaimer, of course. But as the ASA ruling explains quite clearly, Louise holds joint responsibility with the brand for ensuring sponsored posts are clearly disclosed.

Louise told the ASA that she thought her audience would have been aware of the fact that she would be receiving a benefit in exchange for the post given the inclusion of the promo code. She also didn't realise Instagram "stories" required disclosure (as opposed to static posts).

Vanity Planet said they had not intended to mislead and had reworded their contracts for UK consumers to state that the influencer should ensure that they meet UK advertising standards.

The ASA concluded that while the post contained some elements that indicated there might be a commercial relationship between Louise Thompson and Vanity Planet, the content and context of the post did not make clear that it was advertising, as opposed to, for example, genuinely independent editorial content or sponsored editorial content.

Therefore, in the absence of a clear identifier, such as “#ad”, the post was not obviously identifiable as a marketing communication and that it breached the Code.

The ASA also ruled against Louise in July this year for failing to disclose a post was paid for by Daniel Wellington AB.

It was unfortunate for Daniel Wellington that Louise omitted any form of disclosure because, in their defence to the ASA, they explained that they had explicitly included terms of disclosure in their contract with Louise and the terms of the contract stated that disclosures should have been made in the beginning of a post and above the “show more” button, if any, on the social media platform.

Brand responsibility

Daniel Wellington's response to the ASA is more reassuring than Vanity Planet's as they had a few key measures in place:

1. Written contract

2. Key terms in contract outlining exact disclosures to be used e.g. #ad

3. Key terms in contract outlining where the disclosures need to be and the level of prominence

Not that, of course, it prevented an upheld ASA ruling. Ultimately, when an influencer has final responsibility for hitting the upload button, even the most detailed contract cannot prevent that influencer from omitting a disclosure message. But the ASA ruling will give credence to those measures and it should be clear to any journalist picking up on that story that all reasonable measures were taken to ensure consumers could see this was an ad.

Vanity Planet, on the other hand, did not have similar measures in place and imply in their defence to the ASA ruling that they have chosen a more generic contractual clause to abide by UK advertising standards.

If that is the case (and this is speculation) then is that enough?

Should a brand really expect an influencer to know what "abide by UK advertising standards" means in terms of choice of disclosure, location and prominence?

Is Louise's mistake of not thinking disclosure was required for Instagram stories a similar assumption made by countless other bloggers?

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