Wake-up call: ways of working with influencers

Influencers can be great when it comes to providing advertising to an engaged audience. Caroline Swain explains the rules and regulations
The problem
Your restaurant or hotel’s marketing team wants to use social media influencers. You’ve read news stories about brands being called out for not working correctly with influencers and you want to make sure your brand is protected.
The law
The primary regulation when it comes to marketing is the Consumer Protection from Unfair Trading Regulations 2008 (CPUT), which restrict what brands can do in their marketing practices, including 31 blacklisted practices which are unfair and prohibited.
In addition to legislation, the UK has a system of self-regulation governed by bodies like the Advertising Standards Authority (ASA). The ASA is responsible for enforcing the CAP Code (a self-regulatory code published by the Committee of Advertising Practices).
When it comes to influencer marketing, if the influencer’s content falls within the ASA’s definition of an ad, the provisions of the CAP Code will apply. Influencer content is an ad if:
(a) the brand has paid for the content (payment includes cash, a gift, an experience or similar); and
(b) the brand has any editorial control over the content (‘editorial control’ is interpreted widely – not just a right to review the content. It could include a requirement to tag the brand in the post or reference a promotion, for example).
Expert advice
The world of influencers is rapidly evolving. While most influencers have not yet joined the ranks of traditional celebrities, there are now service teams specifically supporting influencers on branding and commercial relationships.
Contracts are now expected, and having a firm contractual position is the norm.
Brands are responsible for ensuring that consumers know when they are looking at an ad which, due to the way that influencer content is shared, is not always obvious.
The ASA therefore recommends that the content is clearly labelled (eg by use of “#ad”). Failure to make this clear is a breach of the CPUTs and the CAP Code.
But labelling and disclosure isn’t the only thing to remember – if the content is an ad, all the usual rules around advertising will apply.
Beware
Both parties will be held responsible for failure to comply with the legal requirements. For the brand, failure to comply may result in bad publicity and brand damage; censure from the ASA; a referral to the Trading Standards Services; possible court action and criminal prosecution; legal action by competitors or consumers; and a loss of consumer confidence.
Caroline Swain is a commercial solicitor at Charles Russell Speechlys
caroline.swain@crsblaw.com

Checklist for employing an influencer
Due diligence
You should investigate the influencer ahead of any engagement. Evidence of erratic behaviour, acting in a manner inconsistent with the brand’s values or failure to disclose that their content is an ad should ring alarm bells.
Contract
Get a contract in place to include:
Disclosure Oblige the influencer to follow current industry regulation, including the use of #ad.
Approval rights State any specific content requirements and any approval processes. Reserve the right to ask the influencer to edit or take down content at your discretion.
Exclusivity Consider whether you want exclusivity by channel or competitor.
Morality/reputational damage Consider a notification obligation and/or a termination right if the influencer does something that could harm your brand.
Obligations Be precise as to the timing of posts, quantity, quality and channels.
Review
Check the content once posted. If there are any issues, use your contractual right to insist the influencer changes or takes down the content.
Things to keep an eye on
Advertising to children If an influencer is under 16 or appeals to or has followers under that age, the advert may be deemed to be targeting children and special rules will apply.
Comparative advertising If the influencer is comparing your restaurant/hotel with another, the rules about comparative advertising will apply. Don’t use a competitor’s name, logo or trademark in any way that may confuse customers.
Advertising food and drink Don’t forget the rules around advertising foods high in fat, salt or sugar and be particularly careful with health claims (eg “superfoods”).