On 1 March 2017, a new provision was introduced into the Australian Association of National Advertisers’ (AANA) Code of Ethics (Code). The new provision stipulates that ‘Advertising or Marketing Communications must be clearly distinguishable as such to the relevant audience’. This is set to have a considerable effect on celebrities and other social media “influencers”, many of whom are paid significant amounts to advertise products on Instagram and various other social media platforms. These influencers and the advertisers that pay them will now need to ensure that such posts are identified as advertising, rather than being “camouflaged” as independent reviews, user-generated content or private blogs.
What does the provision target and when will it apply?
Like all provisions of the Code, the new provision applies whenever material “draws the attention of the public in a manner calculated to promote” a product or service, and the advertiser has “a reasonable degree of control” over the material.
There is no absolute requirement that advertising or marketing communication must have a label. If it is clear to the relevant audience that the content is commercial in nature, then no further disclosure or distinguishing element is needed.
Accordingly, the provision would not apply when an advertiser collaborates with an influencer to create editorial content that is distributed by the brand via its own social media presence, as the commercial nature of the communication is evident by the nature of the communication.
Similarly, if an advertiser were to send the influencer merchandise with no conditions attached, and the influencer subsequently made a post about the merchandise, then the new provision of the Code would not apply due to lack of content control. However, if the advertiser were to arrange with the influencer to post content on social media where the advertiser retains control over the content, this likely would be considered a marketing communication which must be clearly distinguishable as such to the relevant audience – this applies equally whether the influencer is paid in cash or is given free samples.
What is the complaints process if the Code is breached and what are the ramifications of a breach?
A complaint for a breach of the Code can be made to the independent Advertising Standards Bureau (Bureau). If a dispute is lodged with the Bureau, the Bureau’s Complaints Board (Board) must decide whether any of the advertising claims disputed are not substantiated, and it then must provide the case decision to the advertiser with an invitation to produce an Advertiser Statement stating whether the claims will be modified or discontinued.
Immediately after receiving such an Advertiser Statement, or if a response is not received from the advertiser within a nominated period, the Board must issue a final case report to the parties, identifying the advertiser, the product, the subject matter involved and the final decision.
Where an advertiser does not agree to modify or discontinue an advertisement found in contravention of the Code, the Board can also refer the case report to an appropriate government agency and/or forward it to media proprietors. For example, in some instances there could be potential liability under the Competition and Consumer Act 2010 (Cth) for misleading or deceptive conduct, in which case the case report might be referred to the ACCC.
What will be the effect on social media influencers?
As a result of the new provision, it is evident that transparency is the key determining factor. The new provision could have a significant effect on the ways in which brands, companies and advertisers engage social media influencers to promote their products, goods and services. In the AANA’s best practice guideline notes recommend that brands require influencers to use the hashtags ‘#[brand] #ad’ within their social media posts in order to ensure compliance with the new provision, and several influencers have begun using these hashtags in their posts.