Out-Law News 2 min. read

ASA to run targeted ads against rule-breaking Instagram influencers

The UK Advertising Standards Authority (ASA) has announced plans to run targeted ads on Instagram to highlight six ‘influencers’ on the social media site who have continually failed to disclose their commercial relationships despite repeated warnings.

The regulator, which previously “named and shamed” Francesca Allen, Jess Gale, Eve Gale, Belle Hassan, Jodie Marsh and Anna Vakili on its website for lack of transparency over their paid-for posts, said it would also consider further action against the influencers – including removing non-compliant content or imposing fines. The ASA, along with Trading Standards and the Competition and Markets Authority (CMA), can also take action against brands that partner with influencers who fail to disclose paid-for content.

The ASA said it will identify each of these non-compliant influencers with targeted ads on Instagram that read: "[Name] has been sanctioned by the UK's ad regulator for not declaring ads on this platform. Be aware that products and services recommended or featured by this influencer may have been paid for by those brands. Our non-compliant social media influencer page at asa.org.uk is regularly updated to inform consumers of those who break these rules."

Brendan Hatch

Pinsent Masons

The recent actions of the ASA signal a clear shift from passive to more active forms of enforcement of the advertising rules

It comes after the ASA’s 2021 Influencer Monitoring Report (9 page/1.1MB PDF) revealed that just a third (35%) of Instagram ad posts were compliant with its rules. The study identified several specific compliance issues, including failure to disclose when paid-for content spans a number of consecutive Instagram ‘stories’ or a collection of stories, streaming platform IGTV, short video ‘reels’ and posts. According to the ASA’s rules, in such circumstances each individual piece of content must be disclosed as an ad.

It also highlighted several tactics used by influencers to obscure the labelling of stories as adverts, including the use of fonts that are very small, difficult to read, and that are a similar colour to the background. Ad labels are also commonly placed on the screen in positions that are obscured by the platform architecture or are otherwise difficult to spot.

The ASA report also said that influencers should not rely on information in their biographies or past posts to make it clear to consumers that they are connected to a product and should not label posts as ‘affiliate content’ without additional upfront disclosure. An ad label should also be used when promoting a discount code for a product or service, it said.

Brendan Hatch, commercial law expert at Pinsent Masons, said: “As the influencer marketing industry continues to grow, the ASA has invested significant time and effort to ensure that both influencers and businesses employing influencers understand the rules and regulations around paid advertising.”

“The recent actions of the ASA signal a clear shift from passive to more active forms of enforcement of the advertising rules and serve as a reminder to influencers and businesses alike that there may be serious repercussions for non-compliance. In particular, businesses should take an active role in ensuring that influencers are adhering to relevant advertising rules, for example, by screening all sponsored posts in advance of publication to mitigate the risk of reputational damage which can be caused by a non-compliant marketing campaign,” Hatch added.

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