John Coldham: Good morning and welcome to our first in a new series of webinars focussed on advertising brands, copyrights and designs. A few people are still joining so we'll take this slowly while they do so. We considered a cheesy title for these webinars given that they are about advertising brands, copyright and design so the ABCD of IP, but being brands lawyers we felt we better not be too tacky. We usually hold these events as a full morning seminar in our office as many of you know and I'm sorry that today we can't offer you breakfast or coffee. Hopefully you've managed to get one yourselves. Hopefully next year we'll be able to do the catering. At the end of this webinar I'll provide you with further details of forthcoming webinars that we are hosting the next one being on brands and trademarks and that's in November. We'd love to have your input on the events today especially as we are talking about things that are current in terms of the pandemic and relevant to a variety of different types of businesses all of whom have different perspectives. Please do provide your comments and questions as we go along in the Q&A box which should be at the bottom of your screen. We will either try and cover the points as we go along or at the end where we have allowed some time for questions. We may not get to every question during the course of the webinar today and if we don't get to yours we will get in touch separately after the event. Just letting you know we are recording this webinar and we'll send you a link next week so that you can share it with any colleagues who might like to see it. At the end a feedback form should pop up magically. I would be very grateful if you could fill that in as we really do take account of all comments that are made, good and bad, to help us to tailor future events as to what you would like to hear about. Right that's enough parish notices for one day. I'm very pleased to introduce you to Dan and Kate. Dan Smith is our head of advertising law and an expert in everything from helping client through its marketing campaigns through to negotiating major sponsorship and partnership agreements. Kate Hawkins is a senior associate in our advertising team who previously worked for a major brand before joining our team a few years ago. Both Dan and Kate are working closely with Birmingham 2022 Commonwealth Games on all aspects of sponsorship advertising and marketing and with no further ado you'll be relieved to hear I'm going to hand over to Dan.
Dan Smith: OK. Our advertising during the pandemic. How do you keep your, and if you're an agency your client's, brands in consumer's minds during a global pandemic? It's a tricky challenge to say the least which the ad industry has had to deal with over the past few months and is still dealing with, and meanwhile the advertising regulators have also had to keep up with change in public concerns so they've been moving to re-prioritise when and how they intervene in what is obviously a very world. Advertising that was on brand and that was effective before lockdown could suddenly seem entirely inappropriate as we went into lockdown earlier in the year so this was perhaps the most unfortunately timed ad campaign of all time.
So a few short weeks prior to lockdown KFC launched this two minute film and this was a film which consisted entirely of shots of people licking their own and other people's fingers, something which obviously suddenly seemed very wrong in the light of government messaging about handwashing, face-touching, social distancing, and the ASA received over 160 complaints about that particular ad. But this is typical of KFC for those of you who remember how turned a positive out of their chicken delivery issues a couple of years ago, the advertiser fronted up to the challenge so they didn't just quietly back away from finger licking good as many other advertisers would have done. Instead they made that change a centrepiece of their next campaign so you can see that they've pixelated out finger licking there and just left its good, and every other advertiser too has been reshaping their campaigns over the last few months to deal with the new normal. So we've seen some neat uses of some of the world's most famous brands to address things like social distancing.
So here in this next slide the Audi rings are distanced and we saw something very similar from McDonalds, also from VW and of course we've seen many advertisers encouraging people to stay at home, promoting COVID safe measures in their stores or rushing to join the praise for the NHS.
This next one is one of my favourite examples. So it's actually a fake, and John's gone early with the slide there. I was going to warn people who were watching Netflix's Love is Blind to look away before we got to this slide but the concept, and we can see it now, which went viral was that people who weren't already staying at home during lockdown might be encouraged to do so if Netflix were to run a billboard campaign just running spoilers from their favour shows as headlines and as I say that one there is from Love is Blind. It wasn't real. It turned out to be the work of some advertising students. Elsewhere it has felt like the time has come for some ideas so in the case of this next slide this Cazoo ad buying a car from your sofa. Something which would have seemed unusual to say the least before buying a car without having had the opportunity to see it in person and many automotive manufacturers were already looking at direct to consumer and e-commerce offerings but the pandemic has certainly emphasised the need for businesses to boost their e‑commence presence across the board.
And the nuts and bolts of advertising production have also clearly been very heavily affected. So shooting a, let's say a glossy car ad on the Bolivian Salt Flats has suddenly become a whole lot more difficult and brands have had to pull back on other alternative solutions. This is a nice example from the United Arab Emirates. A Honda ad, which looks initially like many other car ads. The close up on the design as the car speeds past the screen until you see that the car in question is actually driving across a carpet in front of a washing machine. It's a toy car.
Brands have also fallen back on advertising in digital and social media so this is quite a nice example. This is Ikea hosting its in-store restaurant meatballs recipe in the style of its own flat packed furniture instructions.
So brands have also been turning more to user generated context and there is advertising law risk there of course in having users producing content which is uncontrolled by the brand but which has official hashtags attached. There is a potential danger of a reputational impact and where the brand subsequently engages with that content by reposting it or liking it then the Advertising Standards Authority will treat the brand as having assumed responsibility for the advertising compliance of that messaging so there is some risk there, but again this is quite a nice brand example where that risk is controlled by the nature of the activity so it's made seeking user's photos of their own home design style. We've also seen a lot of ads making use of businesses' own staff working from home as well as their customers. I've seen a lot more charitable promotions this year benefiting NHS charities and others. Now here's an example of the Co-op using its staff to promote donations to the Fair Share Charity and the next slide is Brewdog moving into new areas, as many brands have, and producing hand sanitiser to give away to those that need it.
The next one is a slightly more unfortunate example. So this was a nice idea for a campaign. This Oh Poly. That's the name of the brand rather than a sigh from me. What they did was they ran a campaign for key workers, a competition for key workers and prize was a Zoom cocktail party and a goody bag in connection with that. So they would send the winners a dress and some other blankets and items for them to wear at this Zoom cocktail party. As it happens one of the nurses who won was working a 12 hour shift on a ward dealing with coronavirus patents at the time of this Zoom cocktail party, so when she asked them what they could do about it the brands said well sorry better luck next time effectively and she asked if she could have the dress and they said no that's just for the people who are able to attend the party. So that's a way to turn something which was quite a nice idea initially into a bit of a PR disaster. This made headlines in the national newspapers.
And then of course as we came out of lockdown and even before then we've seen brands looking to return to normal with their advertising. So you might have seen the Strongbow campaign on the next ad which looks like it was shot in a completely different world now.
So how has this unprecedented situation affected advertising regulations? Well the Advertising Standards Authority has had to deal with a huge amount of new complaints about health and medical complaints and it's therefore re-prioritised it's activity.
So it announced an approach of regulatory forbearance stating that and you can see the wording on the slide there. The ASA is very conscious that in this time of national crisis it must act sensitively and with due regard to the circumstances faced by businesses and members of the public. In practice this means applying a lightness of touch in some areas and in other areas an uncompromising stance on companies or individuals seeking to use advertising to exploit the circumstances for their own gain. So does that mean? How have we seen that working? Well we certainly haven't seen a reduction in our own ASA complaints caseload. Complaints about ads are still very much being picked up by the Advertising Standards Authority and not only in coronavirus related areas. So to take just one example, we've seen a lot of complaints over the last few months and formal investigations into environmental complaints nothing to do with coronavirus just the ASA continuing to pick that up as a priority issue in a business as usual way. But there have also been fewer formal ASA council rulings over the last few months, and a greater willingness on their part to resolve matters informally and to engage with advertisers even before a complaint is officially picked up perhaps outside their more usual structures. There has certainly been opportunities to minimise the PR damage associated with an ASA intervention.
On the flip side of that of course, the ASA has been very quick to take action on complaints about non-compliant advertising of things like hand sanitisers, face masks, purported remedies and infection control measures, and on any that it has interpreted as irresponsible scaremongering. It's not just the Advertising Standards Authority there, the Competition and Markets Authority, Trading Standards, the MHRA, the medicines regulator and the Health and Safety Executive have all been very active so there's definitely a need for extreme caution before you put out any advertising linking products to protection against infection, and the social platform ones too have been active in that space and they can often respond more quickly than the statutory regulators. Facebook for example banned ads for hand sanitisers and wipes for a period though it scaled back those restrictions now.
I'm not going to say too much about this slide on trends in ASA complaints as compared to last year and that's mostly because this is not all that surprising. So for example, there has been fewer complaints about travel ads this year. Now I'm not altogether surprised about that. Presumably there has been less travel advertising due to less possibility of travelling. So automatically there would be fewer complaints, but it is interesting to see a spike in complaints in the health and beauty sector and I very much assume that is directly COVID related, and again emphasises the need for caution in any kind of health and wellness claims.
So what do you need to bear in mind when looking at campaign concepts during the pandemic? Well firstly, and as we have seen, is the campaign appropriate in the pandemic? Is it going to chime with consumers or is it something that is going to look completely out of place in a pandemic environment? Do you need to revise a creative? Could it be viewed as irresponsible in the light of shifting government guidelines? So fortunately the Advertising Standards Authority has laid out a pragmatic stance on these kind of issues in a series of guiding principles. So what the ASA has said is that ads that actively discourage protective measures such as mask wearing or social distancing are likely to be responsible in all circumstances and therefore a breach of the CAP codes and the ASA will be likely to investigate these ads with a view to banning. Now I don't think this is going to come up very often for your businesses. It's more likely to be a minority who face issues under this principle. This is probably not activity that a responsible advertiser would engage in so it covers things like directly discouraging people from wearing masks but it also potentially covers mocking mask wearers, and CAP has cited as an example having some people on a tube wearing masks while an inspector comes past who then take their masks off after the inspector has gone, but it's not something that likely to come up accidentally and therefore is probably not so much of an issue for reputable brands.
The second guiding principle is perhaps more of an issue so what we're looking at here in the ASA words is ads which are responsibly created and which make explicit reference to the existence of the pandemic and those ads must show depictions of social distancing, the correct use of face masks and other protective measures in line with government guidance. Now this is more difficult because inevitably agencies and marketing teams under the brands themselves are going to want to acknowledge the circumstances that consumers are living in their reality, and even just referencing in your advertising in these challenging times or these unprecedented times could bring you within this principle, and so if you do that you may well then have to ensure that everyone in the ad is compliant with current government guidance and there's obviously difficulties with that so in a sense it was easier when everybody had to stay home. There are different national restrictions across the different territories of the UK there are different regional restrictions. We've got the different tiers and I would expect the Advertising Standards Authority to be pragmatic about that, but nevertheless it's going to be difficult to get creative right and there's still a risk there, and a wider issue mentioned from a marketing perspective potentially confusing consumers as to the guidelines which apply to them or provoking complaints.
Then the third bucket is ads which are responsibly created but which do not explicitly reference the existence of the pandemic and those wouldn't be likely to need to depict coronavirus protective measures, and what the ASA has said about this is that they recognise that consumers will understand that ads often depict realities that might not completely align with their experience of real life. Unless those ads explicitly reference the virus they are not likely to be seen to discourage or undermine current safety measures if behaviour which is normal in the ad's version of reality that is shown.
So from the regulatory perspective the safest approach is probably just to ignore the crisis and set your ads in a normal non-pandemic world positioning them as unreal. The difficulty with that is obviously that it doesn't chime with consumer's reality and that may be an issue for the audience and therefore an issue for your marketing teams and your agencies, and secondly when consumers see something which doesn't comply with government guidance on screen they're going to complain about it and you will have the hassle of dealing with those complaints even if the ASA doesn't ultimately uphold them. Now thinking back to that Strongbow ad that I showed earlier, that very much falls within this bracket but on the TV ad Strongbow has still included an on screen super to alert consumers to the fact that that ad was shot at a time when distancing measures were not in place and they're doing that with a view to heading off potential complaints.
There are also practical difficulties in getting a new advert shot under these conditions. So insurance companies are not insuring against COVID related disruption, and the Advertising Agencies through their trade association with the IPA, production through APA and advertisers through ISBA have therefore negotiated this new tripartite production agreement which deals with risk mitigation and effectively passes off the financial risk for disrupted productions to advertisers, and many advertisers have not been happy with that but equally on the agency side the agencies are keen not to be in a position where they are effectively insuring their clients. So what's the best solution there? It's probably to consider all the different creative concepts but come up with something where risk can be mitigated to a significant extent and make sure all parties are complying with those risk mitigation measures.
So one other thing to think about corona-washing. So this was a story in the Guardian a few months ago. It said corona-washing for big bad businesses is the new green-washing. Who's who of polluters, tax dodgers and outsourcing vultures are urging us to stay safe and clap for the NHS. Now that was quite a hard-hitting article but it does illustrate the potential for a backlash where your creative concepts include some kind of nod to the pandemic or some kind of social responsibility related elements.
So just to finish up this section we'll skate through it very quickly through a number of particular issues. Promotions were obviously significantly impacted by the first lockdown, prizes were not available as planned. Businesses are now having to look to offer different prizes in their competitions so clearly you won't be seeing many holidays given away as prizes this year. Availability under GAP guidance and the CAP codes you have to make a reasonable estimate of likely demand for offers and stop to meet that demand or explain the limitations on demand but there have been limitations on supply which have affected businesses being able to meet demand through their offers so what do you do then. Well you have to look to take steps to cease advertising. You have to consider what else can be done to avoid disappointing consumers. Can you offer an alternative? Extending closing dates so the Advertising Standards Authority generally frowns on the closing dates for offers being extended because it considers that people who saw the original closing date were misled. They could have taken longer to make their purchase decision. It may be that you are forced to extend closing dates if your offer, or the availability of your offer or a consumer's ability to take advantage of your offer is impacted by some kind of local lockdown, perhaps a local or a circuit breaker but that doesn't mean that just because times are uncertain you can extend offers because they prove more successful than you hoped or less successful that you'd hoped. The ASA is still going to frown on extensions in those circumstances.
And then on the next slide just taking a look at a few particular sectors. So health and wellbeing has raised a lot of issues so are you making any kind of coronavirus claims or immunity based claims? The MHRA has said that if you are claiming any product treats a named pathogen such as coronavirus that that is a medical claim and the product which is making it should be authorised as a medicine so you would not be able to make those claims which other products. You might be able to say something less or something lower key, something less direct with a buyer side or a cosmetic in accordance with the applicable regulations in those sectors.
Food and drink, be very careful here. Claims to treat disease are banned and claims to benefit the immune system are health claims and are only permitted in so far as they appear on the central register.
Gambling is an area the regulators have been focused on for a slightly different reason, why there are plenty of activities which are quite highly regulated where you cannot show people engaging in them at work and you cannot risk portraying them in a socially irresponsible way so the regulators have very much had their eye on the gambling industry to make sure that no one is taking advantage of the current lockdown and showing people gambling irresponsibly as home alongside remote working or whatever else and to a lesser extent similar issues in the case of alcohol and other highly regulated products.
Fashion, are you marketing masks or be aware that masks could be regulated as medical devices? They could be regulated by the Health and Safety Executive as personal protective equipment or they could be mere face coverings and that is going to affect what you can say about them in marketing. Retailers more than anyone else perhaps need to promote COVID safe measures in their particular premises and so they are perhaps impacted the most by having to show people attending their premises in a COVID safe way. Subscription services have seen a big boom over the course of lockdown but be aware that misleading consumers know the nature of what they are getting engaged in, what's known as subscription traps is problematic and therefore there is the potential for regulatory issues thereto.
So overall I am sure we are going to see plenty of creativity over the winter as advertisers and agencies become more adept at messaging through a pandemic situation, but there are many traps for the unwary and that can be a particularly acute issue when you are moving into new business models, new products and new modes of marketing and given the potential reputation or impact I would say that business would be very wise to keep one eye on marketing compliance throughout this period.
John: Thank you Dan. Passing over to Kate now. Kate if you want to unmute and turn your camera on. Over to you.
Kate Hawkins: Right thank you. So of course moving on from what Dan was saying there is one area that has been particularly important during the pandemic is influential marketing. Social media usage is up and people are consuming more content which influencers can create quickly so it is not surprising to us that brands are looking to spend more on influencer collaboration. So turning to my new favourite influencer John, here is a bit of trivia to kick us off. So I am sure a few of us were delighted to see David Attenborough do an Instagram a few weeks ago especially with such an important message. According to news reports his total following rose to 2.5 million within 24 hours and he reached a million followers in four hours and 44 minutes, beating Jenifer Anniston by half an hour, so we might see more from Sir David especially given the fact that influential related consent is not affected in the same way as content created by a production company as Dan mentioned before. Although influencers had been a popular marketing option for many brands over the last few years the pandemic has been a driving factor in encouraging brands to develop new business models and new ways of contacting consumers, so for example one chain of nail salons which of course were shut during lockdown completely reinvented its business model. It moved to selling false nails online and worked very heavily with influencers to promote the sales of those false nails. It is a great example of a business evolving to face the new challenges and if you are going to do that then you need to understand the rules of the new marketing and sales models that you are adopting.
So this is a timely opportunity to run through the rules on influencers. Influencer marketing is subject to the CAP code and also the consumer protection from unfair trading regulations, the CPRs. The CAP code is enforced by the ASA and will apply to most influencer marketing. In particular rule 2.1 of the CAP code so marketing communications must be obviously identifiable as such. The CPRs contain a schedule of commercial practices, which are in all circumstances considered unfair and may have prohibited on that basis. In particular using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear will be unfair. The competition and markets authority enforces this consumer protection legislation. Both the ASA and the CMA have been very active in this space so far.
Brands and influencers have been criticised here in the UK and around the world for putting out messages which appear to be the unprompted genuine opinion of the influencer but are in fact disguised advertising. Trust is key for both brands and influencers. No one wants to make their customers or followers feel cheated or tricked when they discover that what looks like an independent recommendation is actually marketing. That where the regulators will step in. The ASA has a two stage test when it comes to deciding whether something and influencer posts is an ad. It will ask has there been a payment from the brand to the influencer and secondly has the brand had some form of editorial control over the influencer's content. Payment is treated very broadly and will include money but also money's worth so think about things like free products, discounts, loaner cards, special access to events or other kinds of privileges, and when it comes to editorial control the ASA's adjudications tell us the control is broader than we might think.
No Mad Foods i.e. flat tummy tea had a financial agreement with Sheikhbeauty. She was sent products which she was required to photograph and post on Instagram. No Mad Foods did not provide specific wording but they did ask Sheikhbeauty to base her content on key messages such as the 20% discount offer that you can see in the caption. That was considered to be editorial control, and because there was a financial arrangement as well, the ASA considered this to be advertising. Without a clear identifier such as the #ad which you can see in the revised post which is on the slide. The ASA concluded that this post was not obviously identifiable as a marketing communication in breach of the CAP code. So when thinking about control you should ask yourself am I providing key messages or things to the influencer, am I requiring them to be positive about the brand? Am I asking the influencer to include campaign hashtags or posting on boxing? Am I preventing an influencer from posting about other brands? If so then that will be control. If both stages of the test are met, being payment plus control then the influencer content will be advertising for the purposes of the CAP code. So what do you do then, both the brand and the influencer need to make sure that the post is labelled correctly.
If we go to the next slide we can see some examples. So a complaint was made to the ASA that his post was not obviously identifiable as a marketing communication. There was a commercial relationship between Daniel Wellington and Louise Thompson whose pictured here in the Maldives I believe, set out in a written contractual agreement. Louise agreed to promote Daniel Wellington's products by posting into her Instagram account and she was paid in return. Daniel Wellington had stipulated hashtags to be used by Louise such as #sponsored and #ad but they were not included in the original post. The ASA concluded that this was advertising. Louise had been paid, Daniel Wellington had sufficient control over the context and it breached the code because it did not include a clear identifier such as #ad. Now it is worth remembering that even if you have a control with an influencer that sets out the hashtags to be used and the contract requires them to comply with all applicable advertising rules, the brand will still ultimately be irresponsible and will be named in an adjudication just like Daniel Wellington was so one thing we are seeing at the moment with some clients is ensuring that the client has the right to approve the final post. That way you can do a final check for compliance
In this post, Olivia Buckland has turned the bake brand company Cocoa Brown and also included some hashtags including #brandambassador. Someone challenged whether this post was obviously identifiable as an ad. The original post did not have the #ad that we can see at the end of the caption here. Olivia Buckland explained that she had used the brand ambassador hashtag in the post and also in her Instagram bio but the ASA was not convinced that Instagram users would see Olivia's bio at the point they were reviewing this post. They also did not think that the brand ambassador hashtag was likely to convey that Cocoa Brown had both paid for and had a level of control over the post.
So the point about brand ambassador was looked at again earlier this year. Molly Mae posted this image with the caption AW I'm ready with a little brown leaf emoji. As with Olivia Buckland, Molly Mae identified herself as am ambassador for Pretty Little Thing in her Instagram bio, the ASA acknowledged that Molly Mae's followers might be aware that there was a commercial relationship with the brand but because this label was in the Instagram bio only. It would not be seen my people who did not visit Molly Mae's account and who only saw this post in their feeds. The ASA will look at this point on the basis that people who are new to the influencer will not necessarily know the background and the relationship that they have with certain brands. When people see something in their feed they do not always visit the influencer's profile and the ASA will be concerned that these people will be misled even if the long-time followers know about the brand relationship.
This was an early adjudication about a video Milly Macintosh's Instagram account in 2015. The caption reads 80s vogeuing X yoga at House of Yoga. More of my #BlendRecommends with @drinkJ20 Spritz to come #SP. The ASA did not think that #SP was sufficient to make this post obvious as an ad and in fact, last year the ASA published a report of its findings on consumer understanding when it comes to labelling something as an ad. That report said that consumers' understanding of abbreviated labels like #SP or Sporen or AFF is very, very low. We know that the sponsored label is considered to be sufficient in other jurisdictions but it will not be accepted in the UK. We do see it regularly coming up in influencer posts but the ASA takes the view that just because content is sponsored it does not necessarily mean that the brand has control over it, so for example you could be sponsoring a football team without keeping the actual players, or you can sponsor a weekend pull out magazine without preparing any of the content that people will read. But if the brand does have control, which Britvic did have here with Milly Macintosh, and using the sponsored label will not be enough so while this adjudication is from a few years ago, it is still very relevant.
We now tend to advise clients to go with #ad as this has become the defacto standard. The positioning of this #ad label is also very important. The ASA has said that it will expect the label to be above the photo or at the beginning of the ad, it must be prominent and not buried in a series of hashtags or only seen after the consumer has engaged with the ad.
This was a video posted back in 2014 making this one of the very first ASA adjudications to influence the marketing. Two YouTube stars filed themselves taking part in an Oreo lick race. Originally the text beneath the video which was only revealed when a show more button was pressed stated check out the Oreo site for more licking action with a link. Thanks to Oreo for making this video possible. A BBC journalist complained whether this ad and a few others was obviously identifiable as an ad. The ASA did not think the description was sufficient especially because it had to be opened by a viewer. So as a takeaway we always recommend to clients that when their influencers are posting ads to YouTube or similar platforms the title of the video and the thumbnail at the very least should include an identifier such as #ad but it is clear to consumers before they click to watch the video that it is adverting. Now I have given labelling a lot of focus but it is important not to forget that if the influencer content is advertising then all of the CAP code rules will apply. For example if you are advertising alcohol then the influencer should not post a picture of themselves and their friends being drunk. You should also pick an influencer whose followers are over 18 and make sure that as part of your due diligence that the influencer is not of particular appeal to under 18s.
So this is a recent ASA decision and it was published just last month and for those of you who don't know and I had to look it up, Luke Mabbott is a former contestant on Love Island. So we can see that Luke has posted using #ad but the issue here was whether this post had been inappropriately targeted. Ads for alcohol must not be directed at people under 18 and a medium should not be used to advertise alcohol. If more than 25% of its audience is under 18. Ultimately, while the ASA acknowledge that the post may have appealed to some under 18s, it did not consider it to be a greater appeal to them than those who were 18+. The ASA Also looked at Luke's Instagram account and concluded that his account was not a particular appeal to under 18s. So overall global brands could show that significantly less than 25% of the audience were under 18 so this was fine, but this gives you a bit of an idea of the kinds of things the ASA will be looking at.
So moving on, if you are a car manufacturer and you lend an influencer a car the influencer should not show themselves or post about driving over the speed limit or irresponsibly and you should definitely not ask employee to advertise a prescription or any medicine. Just like the ASA published an adjudication about Skinny Jab and Gemma Collins, which John gave a little sneak view of, a complaint was made about Gemma's Instagram posts. Gemma posted a story in which she stated and I'm not going to try and do an accent; working on my summer body whilst in isolation and this really helps me. This is what you get when you bought it from Skinny Gel and it does help, it really does help. Cannot wait to be out of lockdown in a nice summer dress. The story also featured the Skinny Jab guide booklet, which we see in the image on the left, and next to the booklet was a box with the pre-filled injection. Advertising prescription only medicines to the general public is strictly prohibited. The injectable pictured here is a prescription only medicine so the ASA concluded that this story breached the code. The decision also concerned labelling. Skinny Jab explained to the ASA that its contract with Gemma had expired in December last year and had not been renewed due to the COVID-19 lockdown, they said that it had been agreed with Gemma's agent that they would resume their working relationship when restrictions were lifted and now whatever Gemma said or did during this period of downtime was nothing to do with Skinny Jab. Skinny Jab argued that the Instagram story was not advertising because it did not arise from Gemma's contractual obligations. The ASA concluded that whether or not Gemma had been paid for the actual story did not mean that that story was not an ad. They noted that Gemma was featured on Skinny Jab website and the ASA did not see anything from Skinny Jab that directed Gemma to change her social media activity during the course. So even though this story was not requested by Skinny Jab it reinforces the point that the brand will still be seeing as having control meaning the post will still be advertising.
Of course many of you will not be in the pharmaceutical field but this illustrates how normal advertising rules will apply. So whether you are advertising hand sanitisers, cars, retail store sunglasses or whatever else, these rules will apply not only to the material that you pay an influencer to post but also to whatever else that the influencer post for free during your commercial relationship for up to 12 months from last working with you. The way you have payment by way of free products or a surprising delight or an ongoing commercial relationship but no editorial control then the Competition and Markets Authority comes in. As I said at the beginning it is an unfair commercial practice to use editorial content to promote a product, where a brand has paid for that promotion without making that clear. The regulators say that consumers need to know about the commercial relationship between the influencer and the brand because it affects their behaviour i.e. a person might be induced into buying something that they might not have otherwise have bought. So even when you don't have any control over what the influencer is posting, for example you might have sent them something with no strings attached as a brand, you should still make sure that anything an influencer posts is identifiable as being paid for, or if the influencer discloses that they got that gift from you.
As you can see there are a lot of things that you need to keep in mind. Both from a brand perspective but also from an agency or an influencer perspective. It is crucial that all parties do their due diligence when selecting partnerships. No one wants to damage their reputation. We know this kind of activity offers a big source of income for influences and the wrong brand fit might have an impact on an influencer's future brand partnerships. Likewise a controversial influencer might not be the best fit for your brand. If we go to the next slide we can see some examples where it has gone wrong.
YouTube star PewDiePie on the left there was in Forbes highest paid YouTuber's list in 2016. After a number of anti-Semitic jokes and racial slurs, Disney and other brands severed ties with him. Logan Paul on the right is another very successful influencer. He posted a video of himself near a man's body at a popular suicide point in Japan. This prompted significant criticism across the internet and left brands to question collaborations with him. So clearly you need to take care when selecting your partners.
Once you have done your due diligence and you are happy to associate your brand with the influencer's brand or vice versa, depending on which side you sit on, you should look at getting a contract in place. We produce template influencer agreements for our clients that cover up on the key regulatory issues. These are easily filled in by the commercial team especially for those quick low value campaigns. When it comes to negotiations for the bigger partnerships we tend to mostly see things like the influencer liability, whether the influencer will be working with you exclusively or not, and the extent of the brand approval right negotiated. Influencers often want to keep editorial control which is understandable. They do not want a brand to try to change their tone of voice and often if you take a step back you can see that you have approached this influencer for a reason. If they have a big and loyal following that is often because they have kept their own personal style and that is what a brand really wants to harness, so to help ease that process we have also produced a do's and don'ts list for influencers when it comes to posting on social media. We also have a policy for the brands team so that everyone knows ahead of time what they should or should not be doing because at the end of the day brands want to reach less accessible audiences and generate goodwill and influencers want to keep growing. So if we go to the next slide for a round-up.
So as we have said you must be transparent with consumers and label content with #ad if there has been payment and some kind of editorial control. As we have seen, the ASA is likely to interpret control very broadly. You should also be transparent about the commercial relationship for up to 12 months. You must not forget that if the post falls within the ASA's remit then all of the advertising rules must be complied with. This is especially important if you are advertising regulated products like alcohol or gambling. One way of protecting yourself against all of this is to make sure you do your due diligence on the influencer and put the right paperwork in place. John I'll hand back over to you.
John: Thanks Kate did you want to mention your last slide about Little Mix?
Kate: This was just in passing and Dan shared this with me actually so this is an example where an agency has provided some proposed copy to Jade from Little Mix and she has done a strong copy and paste so it even includes the agency's instructions how's this copy Jade?
John: It just goes to show that it is very easy to make mistakes when doing this sort of thing. Thank you Kate and Dan very much. If you could just ensure that if you have a question you would like to ask in the last 10 minutes we have of this webinar please do send it over now. I will start with some of the questions we have already received. The first one is to do with when you are working, a lot of this stuff we have talked about and Dan I hope you are there too. If you can join us again that would be great. A lot of the stuff you have talked about is very much focused on companies who might be dealing directly with the influencers and people promoting your social media. Do you have any tips for companies who work with agencies who run social media campaigns on behalf of clients but also some of those agencies I know Dan can offer sort of ad text solutions to increase traffic and so on. If you have got any sort of particular, I appreciate that is a topping in its own right but if you have got any sort of particular things that clients and companies should watch out for in those sorts of situations do you want to share them now.
Dan: Yes so it depends on the individual issue. If it is a deal between an advertiser and an agency which would be contracting influencers on the advertiser's behalf then a lot of the same concerns which Kate has mentioned will arise so the contracting will eventually be slightly different, potentially be through the agency but the advertiser will still want to be clear that the context which the influencer producers is appropriate, it is correctly labelled because otherwise it is the advertiser which would suffer the brand damage if there were an issue. For digital agencies more generally for the programmatic advertising space well there are various concerns that both parties need to work together to address in any contract so the information commissioner has expressed various concerns about the way personal data is dealt with in the programmatic advertising space and both clients and agencies will be concerned to ensure that any issues there are correctly addressed there has traditionally been issues or misunderstandings around transparency in supply chains around digital media and who and where is getting remunerated by who so agencies receiving bonuses or benefits back from media owners and whether those are disclosed to or audited by their clients so there is plenty of issues to deal with but they can all be covered with an appropriate contract in place. So brand safety is another one. You do not want your digital advertising placed alongside decapitation videos or whatever else, so again it is a question of looking at what solutions are available to make sure that does not happen.
John: Thank you Dan. Lots of questions so we will try and get through them all. A comment on the Little Mix post. I thought that might inspire some questions. If you are promoting effectively your own brand such as Little Mix, I appreciate not if you are a company or a corporate entity but if you are Little Mix and you want to promote your own content do you have to use the #ad element in that situation? Yes it is their own brand but obviously in reality it is products produced by a third party so what's your recommendation in relation to that.
Dan: So potentially the answer is yes. The regulators have tended to be relatively relaxed about content brands put on their own feed so if you are a beverage company and you put some kind of content on your own feed then the regulators take the view that people will understand that that is likely to be advertising, but if you are an influencer or a celebrity, then you are essentially posting from different perspectives so sometimes it is just your own thoughts and other times it might be appetising so the ASA has considered various complaints about influencers who posted about their own licenced products without making it clear that that is the case and yes in those circumstances they have looked for a #ad label in a similar way.
John: Thanks Dan. Have you had any clients specifically asking for advice in relation to uploading videos on TikTok and if so are there any particular considerations in that area or is it similar to the other social media channels?
Dan: It is similar so TikTok likes to present itself as an entirely new model but it presents similar issues. Yes we have had a lot of questions about TikTok and about TikTok celebrities, similar issues arise around simply labelling of content which is in effect paid for advertising. Also seeing a number of misunderstandings about people's ability to use third party copyright music and the like in TikTok videos so the impression that that might be OK within TikTok so I would not say the issues are specific to TikTok it is more a question of applying the same principles in a platform which works in a slightly different way.
John: Thank you Dan. We are running out of time so just perhaps time for one more question. A lot of influencers we have looked at there are the mega influencers. Many brands actually use very low level influencers, if you are doing something like baking products you might sell to family led influencer blog and things like that. On one level the considerations will be the same and I know Kate recommended both obviously. Legal will also probably more importantly practical do's and don'ts sheets for influences but is there anything else that people should be thinking about if they ae engaging in a sort of mass low level influencer campaign where you do not have time to negotiate a big contract with the one influencer. If you are doing it with a big influencer you are focusing on that one like a big collaboration agreement but if you have got hundreds of micro influencers is there a way to approach that sort of campaign.
Dan: Yes so I mean the same issues apply and you may get away with it most of the time but if you get caught and the ASA or the Competition and Markets Authority or Trading Standards would take the same approach and they would ask whether that content was appropriately labelled and it is clear from the ASA's annual report that the influencers are a continuing area of focus for them. Now to date the people who have tended to be caught out are the people in the middle so not the absolute mega celebrities and not really the micro influences but often the people who are influences but that is just one income stream so the Love Island contestants, the Made in Chelsea, Only Way is Essex stars and the like have tended to be the ones who are caught out but the same rules apply to all with the micro influences, you are looking at ways to get the appropriate protections in place which are not administratively burdensome so you are looking at template documents which you can use across large numbers of influencers. You are looking potentially at document automation, as you said you are looking at practical guidance and guidelines which you can circulate rather than just relying on an influencer's own knowledge of the law.
John: Perfect. Thank you very much Dan. We are at time now so we have our contact details on the screen if you would like to follow up with any of us and it will also be in the follow up email that you will receive. Just a quick plug for the remainder of this webinar series. We are doing this monthly so that you have a whole month to get excited about the next one. The next one being on 11 November and it is with Kate Swaine and that is about brands. Then you have the dubious pleasure of me talking to you about designs on 3 December and then the new year Khemi Salhan is going to talk about copyright so lots to look forward to, I don't think this autumn is going to be depressing when you have got a series like that to look forward to. Thank you very much all of you for joining and thank you again to Kate and Dan for an excellent run through of many different advertising issues and we wish you all the best for the rest of your week. Thanks for joining.