EU-UK ADVERTISING AND MARKETING.
September 14, 2021
In response to growing attention being paid to influencer marketing by regulators, as seen by the release of the ASA’s influencer monitoring report and the DCMS Committee’s Influencer Inquiry earlier this year, the ISBA has launched a new Code of Conduct for influencer marketing. While the Code is not a binding legal instrument, it aims to provide advertisers, brands, talent agencies and influencers with an industry standard of best practice.
- July 25, 2018 – The Incorporated Society of British Advertisers (“ISBA“) launches influencer contract templates.
- March 18, 2021 – The Advertising Standards Authority (“SAA“) publishes its influencer monitoring report.
- March 26, 2021 – Department for Digital, Culture, Media and Sport (“DCMS“) Committee launches inquiry into examines the power of social influencers (“DCMS Influencer Inquiry“).
- September 14, 2021 – ISBA launches Code of Conduct for influencer marketing.
- October 8, 2021 – ASA releases new resource page for promotions on social platforms including checklist for influencers and brands on prize promotions.
- In response to growing attention being paid to influencer marketing by regulators, as seen by the release of the ASA influencer monitoring report and the DCMS Committee’s Influencer Inquiry earlier this year, ISBA launched a new Code of Conduct for influencer marketing (the “Coded“) in September 2021.
- While the Code is not a binding legal instrument, it aims to provide advertisers, brands, talent agencies and influencers with an industry standard of best practice. The Code complements the existing legal framework in the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) and the CAP Code.
- ISBA states that parties may add the Code to their agreements to translate the provisions of the Code into binding legal obligations. Several major UK brands (including Britvic, Entain, LG, L’Oreal, Made, Paddy Power Betfair, PepsiCo, Specsavers, and Tesco), talent agencies and influencers have already agreed to adhere to the Code. ISBA plans to update its template influencer contracts to reflect the Code.
What it hopes to achieve
- The Code sets out the following five objectives:
- to ensure compliance with regulatory regimes imposed by ASA, the Competition Market Authority (“CMA“) and the CAP/BCAP codes;
- to raise standards of conduct in influencer marketing;
- to improve the relationship and align values between advertisers/brands, talent agencies and influencers;
- to enable advertisers to employ authentic and effective influencer marketing; and
- to deliver the transparency that consumers expect and deserve.
- In large, the Code provides a means of self-regulation within the industry to ensure that the growth of influencer marketing is sustainable. As regulators such as ASA crackdown on influencer marketing, the Code helps stakeholders to stay ahead of the curve on best practice.
Who does it impact?
- The Code includes forty points of best practice for:
- advertisers and brands;
- talent agencies; and
- The disclosure obligations in the Code will also affect what consumers on social media channels see in relation to #ad labels and the use of beauty filters.
- Key obligations on brands and advertisers
- The Code encourages brands and advertisers to provide clearer guidance and greater transparency before entering into contracts with influencers. Once in a contract, the Code also provides best practices in relation to safeguarding influencers’ authentic views, disclosing #ads properly, and carrying out adequate due diligence to address any misalignment of values or reputational difficulties between the brand and influencer
- Key obligations on talent agencies
- The role of talent agencies’ is clearly distinguished from that of influencers in the Code. Described as “gatekeepers” of the agreement between the brand and influencer, talent agencies are required to ensure smooth communication between the parties (eg making sure influencers provide deliverables which meet the brand’s brief, co-ordinating approvals, timing of services and receipt of payment , etc). The obligations on talent agencies also supplement requirements on influencers (eg in relation to disclosure)
- Key obligations on influencers
- In addition to adhering to brands’ pre-approval processes, influencers are under several obligations in relation to their behavior and content. The Code reinforces their obligations to comply with existing regulation on the #ad label and use of filters. Further, it addresses industry concerns about the difficulties in measuring the efficacy of influencer marketing by requiring influencers to feedback on their engagement metrics, enabling brands to assess their return on investment.