Influencer marketing is a powerful weapon for brands. Influencers engage with target audiences through authentic storytelling, improve brand sentiment, and so drive a successful return on investment. However, with regulatory authorities increasingly scrutinising campaigns, mitigating against potential legal, commercial and reputational damage should be considered when embarking on working with influencers on digital marketing campaigns. Gowling WLG's five-part series of Influencer 101 articles will equip you with the tools that your brand needs to ensure it's in the strongest position when approaching influencer partnerships.

Meet Gowlessence, the latest beauty brand to pop up on your social media feed. Gowlessence produces cleansers, creams and serums that its customers swear make them look good on the outside, while also making them feel good on the inside. Gowlessence's demographic is millennials that justify their indulgence on "self-care" by investing in Gowlessence's promise of organic, cruelty-free products and lifestyle.

In order to capitalise on the beauty industry's penchant for digital marketing, Gowlessence want to launch an influencer marketing campaign. Gowlessence has allocated a generous budget for this, in the hope that collaborating with influencers that already have loyal audiences will bring more eyeballs - and subsequently, sales - to the brand.

Social media content labels and disclosures

As a general rule, across the larger jurisdictions, whenever an influencer creates content for a brand and receives something in return - be it money, an experience, or a gift - the commercial nature of the content needs to be disclosed. This means that the advertorial content that Gowlessence intends for its influencers to post must be labelled as such. Both the influencers and Gowlessence are responsible for disclosures, so, in event of an investigation, Gowlessence cannot hide behind the influencers. The easiest and most prudent way to label advertorial content is by using the #ad identifier.

This article explores the necessary content labels and disclosures so that brands can avoid falling foul of any relevant advertising and marketing law regulations. This is especially significant as relevant authorities are increasingly taking action against brands whose digital advertisements are held to be "misleading".

#ad

The use of #ad is important for the following reasons: firstly, so that an account's audience know that content is being influenced by the brand (preserving both the brand and the influencer's transparency); and secondly, so the parties don't breach relevant advertising laws and regulations and, so, are accused of "misleading" the audience. In this way, appropriately labelling the content for what it is - that is, a paid promotion - ensures that the marketing communication is honest and genuine. Of course, advertising rules vary across the world (to a limited extent) but wherever content is accessible, that country's rules apply.

#spon

Gowlessence's influencers are reticent to use #ad in their posts. They think that their audience will think they're "selling out". Instead, they want to use #spon as a disclosure, as they think it gives the impression of a partnership, rather than just an advert. However, #ad does not have the same meaning as #spon. In practice, #spon should only be used in limited circumstances where an influencer has received financial benefit from a brand but the brand exercised no editorial control over content.  There is an argument to suggest that payment could be perceived as a means of editorial control - i.e. if an influencer doesn't post to the brand's satisfaction then the brand could withhold payment. However, this scenario has yet to be examined by advertising authorities.

Gowlessence's deliverables brief includes the following information:

Please post a photo of you applying our new Self-Care Serum. The product must be in a prominent position in the photo, with good lighting so the packaging is visible. You must be looking happy and excited to be using the product. The caption must include our hashtag #GowlessenceGlowUp. You must send the photo and the proposed caption to us for approval before you post it.

As Gowlessence provides a content suggestion; subliminal messaging to be incorporated; campaign hashtag and; approval rights, it is clear that Gowlessence retains editorial control over the content. Therefore, captions must include #ad, not #spon. And, regardless, #spon is more appropriate where a brand solely gifts a product.

Where neither #ad nor #spon are required

One of Gowlessence's influencers refuses to follow this brief, not wanting to post any advertorial content, and so pulls out of the campaign. However, the influencer doesn't want to sever all ties with Gowlessence so will still post about the Self-Care Serum (a bottle of which the influencer bought itself). There are two obvious cases where #ad doesn't have to be used: firstly, where opinions about goods, services, or a brand are entirely the influencer's and there is no commercial relationship with the brand; and secondly, where it's very clear to followers that the content is an advert. The latter is a tricky one to prove, however Gowlessence's mutinous influencer posts an honest review video on Instagram Story about the Self-Care Serum. There is no requirement for this story to contain #ad, as there was no editorial control. Nor is there a requirement for the story to contain #spon because the influencer did not receive anything from Gowlessence in return.

Instagram

Instagram's "Paid Partnership With…" feature was introduced to help label and recognise advertorial content. Gowlessence asks its influencers to use it, though it makes the influencers aware that this feature is Instagram's - not that of any regulatory body. Until specific clearance is given by the relevant authorities, it's prudent for Gowlessence's influencers to include #ad in the caption of their posts as well.

Employees

Gowlessence is keen to encourage its employees to use social media and become advocates for the brand. However, if an employee posts about Gowlessence or discusses the brand on its personal account, this may be interpreted as an advertisement - even where employees are acting independently and not at Gowlessence's explicit request. Gowlessence therefore sends an internal memo to its team, asking that employees must make it clear that they are affiliated with Gowlessence when making any online endorsements. This can be done in the bio of the employee's social media account. Gowlessence also uses this as an opportunity to provide its employees with the company social media policy to avoid any embarrassing incidents.

Correctly disclosing content may seem tedious for both brands and influencers, but being seen as genuine and trustworthy in the saturated world of digital marketing is important. The internet is full of people looking to expose brands/influencers, so if posts aren't labelled as they should be then Gowlessence and its influencers will be called-out - which may lead to regulatory authorities getting involved. For this reason, Gowlessence is adamant that no posts mentioning or featuring it or its products are posted by its influencers without first being approved - to guarantee that disclosure requirements are adhered to.

Read the other instalments of Influencer Law 101: