4 April, 2017
What you need to know
From 1 March 2017, the Australian Association of National Advertisers (AANA) Code of Ethics (the Code) now includes a new provision which requires that “Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience”.
The new provision is accompanied by a best practice guideline published by the AANA, the “Clearly Distinguishable Advertising: Best Practice Guideline”, to assist advertisers to understand what needs to be done to clearly distinguish to audiences when a communication is in fact marketing or advertising.
The guideline provides that if it is clear to the relevant audience that certain content is commercial in nature, then there is no requirement to label it as marketing or advertising. However, if it is not clear that the content is marketing or advertising, the advertiser may be in breach of the Code where it has a reasonable degree of control over it but no disclaimers are included.
Application to social media “influencers”
While the new provision applies to all forms of advertising and marketing communications, the guideline provides specific commentary in relation to the use of social media ambassadors or “influencers” by advertisers. This is where advertisers provide free products or services to bloggers and celebrities, who create their own user-generated content featuring the products or services and share it with their followers. It is not always apparent when a post is independent in nature or when it has been “sponsored” in some way.
The guideline states that where a brand sends products to a social media influencer without any requirement that they must promote the products on social media, and the brand has no control over the statements the influencer may make, any resulting communication by the influencer will not fall within the ambit of the Code. However, if the brand does retain some control over the content, it is likely to be a marketing communication and should be distinguished as such by use of a hashtag such as #ad.
The AANA’s approach in this regard is similar to that of the Federal Trade Commission in the United States, which in 2015 updated its guidance around brand endorsements and testimonials to deal with these social media issues. However, the US position goes further by requiring that influencers must disclose all free products that they write about.
What you need to do
This serves as an important reminder to businesses who regularly use social media influencers to promote their brand or products to ensure that:
- their marketing teams are aware of the new provision and guideline;
- their arrangements with influencers either require them to disclose any connection with the business in their posts or do not contain obligations to post about free products; and
- they actively monitor posts by influencers to check that they have made any necessary disclosures and do not make any other false or misleading claims about the products (which could be in breach of requirements under the Australian Consumer Law).
For further information, please contact:
Lisa Ritson, Partner, Ashurst
Lisa.ritson@ashurst.com
