Is it an Ad?
Consumers have less experience with some forms of advertising in the social media space and ‘paid content’ can be difficult to distinguish from independent editorial or organic user-generated content. This means that marketers/brands, agencies/comms partners and the creators/influencers must pay particular attention to ensuring that marketing communications are clearly identifiable as such.
Under Australian Law, consumers are entitled to know if an influencer or creator has been paid to post about a product or service because in that instance it effectively becomes advertising. Australian Consumer Law (ACL) includes two fundamental rules relating to advertising:
You must not engage in conduct that is likely to mislead or deceive;
You must not make false or misleading claims or statements.
The AANA provides a self-regulatory code, the AANA Code of Ethics, that underpins the ACL and the governing body that rules according to this is Ad Standards Australia. AiMCO’s code which is specific to influencer marketing also underpins the ACL.
Recent complaints to Ad Standards Australia have resulted in some March 2021 rulings on influencer posts under the newly revised AANA Code of Ethics that came into effect February 1, 2021.
In addressing a complaint regarding an Anna Heinrich Instagram post featuring a Runaway evening dress, the Ad Standards Community Panel first needed to assess whether the post constituted advertising or marketing communication and then whether it was clearly distinguishable as such.
The panel noted that the clear display of the dress in the image paired with the use of the brand’s handle and tag did amount to material that would promote the brand in the eyes of consumers. Hence, they ruled that the post needed to be tagged as an advertisement according to the new AANA Code of Ethics and also under the AiMCO Code - the post has since been updated and tagged in Instagram as a Paid partnership with runaway the label.
Heinrich was also the subject of another complaint lodged with Ad Standards, regarding a post for Crown Resorts. The complaints against the post raised similar concerns that the post had no transparency over sponsorship content and that it showed a lack of regard for Australian Consumer Law.
However, this complaint was dismissed by the Community Panel with the differentiating factor in this case from the first being that the hashtag #CrownPartner clearly distinguished the post as advertising content for Crown Resorts. In its response to Ad Standards, Crown highlighted that its processes since this ruling have been updated to require all marketing posts from influencers to also include the hashtag #sponsored.
An additional ruling by Ad Standards was made regarding a post for Tom Ford fragrance by Melbourne influencer Rozalia Russian. The panel determined the post was an ad as the product placement and display of the brand name would attract attention to the brand in a manner designed to promote them. It considered that the post was a paid ad but lacked transparency with no acknowledgement of its sponsored nature. However, the agency for the brand has since indicated to AiMCO that this was not a client paid post and so this ruling may need to be further clarified.
It is important to note that the AiMCO code outlines that gifts provided as payment-in-kind are also considered advertising and must be disclosed as such.
AiMCO Best Practice Working Group are currently reviewing and updating the AiMCO Code of Practice, in line with these rulings and also to ensure that it appropriately underpins the revised AANA Code of Ethics. Also the aim is to provide more clarity on some of the nuances of posts made as a result of gifting with regard to advertising disclosure.