If a latte is poured without anyone photographing it, does that make a drawing?
Instagram, TikTok and YouTube are the big screen of this century. It’s how people stay in touch, share their art, and learn about trends and fashions that impact the world they live in. While showcasing the heights (and depths) of modern self-expression, such expression has limits when brands sponsor content.
From athletes and celebrity teachers, to trendy grandmothers and now even computer-generated “simfluencers”, social media stars are increasingly taking advantage of their followers in expensive sponsorship deals. The personal nature of the medium offers brand owners something unique – a blur of opinion and publicity that gives their marketing an air of authenticity. Yet it is precisely this softening of the border between fashion and advertising that catches the attention of regulators – and puts some brand owners in trouble.
In Canada, influencer marketing is regulated by the federal government under the Competition law (administered by the Competition Bureau) as well as the self-regulatory body, Advertising Standards Canada. According to the guidelines established by these organizations, there are two “golden rules” that advertisers must respect when marketing through influencers:
Golden rule n ° 1: disclose any material connection
If an influencer talks about a product, service or brand and there is a link between the influencer and the product / service / brand that can affect the weight or credibility of that statement, then the link must be disclosed. This is called a “material connection”. Of course, the most obvious form of a physical connection is payment. But a material connection can also include arrangements such as gifts, contest entries, event invitations, family relationships, employment relationships, and participations.
As soon as there is a material connection between the influencer and the product / service / brand, the influencer must disclose it in a meaningful way.
Hashtags are a disclosure tool that anyone can easily understand, but influencers and advertisers should be sure to choose an appropriate hashtag. Acceptable and widely recognized hashtags include #ad, #sponsored, #[brand]_partner and #[brand]_ambassador. Unacceptable hashtags are usually ones that are too ambiguous, such as #Spon, #Collab, #Ambassador, #Promo, and #[brand].
Disclosure should be clear, visible, and inseparable from the content of the post, and should be specific to each sponsored post (rather than general disclosure in an influencer bio).
There is no exact formula for disclosure, and the door can be opened for influencers and advertisers to get creative. What ultimately matters, and will determine compliance, is that the consumer is not manipulated and clearly understands that a connection exists and that the content is sponsored.
In the event of inadequate disclosure, the influencer content could be considered false or misleading, contrary to the Competition law.
Golden rule 2: no deceptive marketing
As with all forms of advertising, statements made in influencer marketing should not be false or misleading. It is important that all parties involved ensure that all statements made by an influencer about a product / service / brand are:
- Authentic opinions based on experience,
- Claims based on facts, or
- Performance claims based on proper and adequate testing.
Proving that no job is safe, bots and animated characters are now entering the ranks of the social media elite.
Doing whatever typical posters do – model clothes, share stories, ask for discounts – virtual influencers are all the rage as a way to reach online audiences without the pesky interference of humanity.
And just like other influencers, the same rules should apply (in addition to Asimov’s laws).
The main difference is that “experience” can no longer form a basis for making product claims. Until these bots become aware of themselves, attributing positive feedback to AI influencers runs the risk of “astroturfing” – the practice of making false reviews for an organization’s own benefit. . Since Canadian authorities have yet to provide public guidance on the specific issues posed by AI influencers, advertisers should exercise caution when deploying AI influencer marketing. Consideration should be given to whether posts sponsored by AI influencers should include additional information regarding the influencer humanity (or lack thereof).
That said, AI influencers can be compared to dedicated AI mascots. If an AI mascot speaks for only one company, repeated reminders of the material connection to its creator are unlikely to be necessary because the connection is clear, such as when dedicated human spokespersons promote their affiliate brand.
Consequences in case of violation
Advertising standards reviews several hundred advertisements each year, of which 50 to 60 are referred for a full assessment. When someone contravenes Canadian standards, the advertiser is invited to modify or withdraw the ad. Ad Standards also publishes public reports explaining why, after its assessment, the ad was found to be non-compliant.
Beyond these reports, there has been little enforcement by Canadian authorities so far. Regulators choose an educational approach – as when, in December 2019, the Competition Bureau sent letters to nearly 100 brands and agencies involved in influencer marketing, warning them to make sure their practices comply with the law.
There is one notable exception, however. In 2015, Bell was fined $ 1.25 million by the Competition Bureau for asking Bell employees to write favorable reviews of Bell products on various websites and web application platforms. without disclosing their employment status. It remains to be seen whether the Competition Bureau will continue this sanctions-focused approach against influencers and individual advertisers.
In the United States, where influencer marketing is regulated by the Federal Trade Commission (FTC), the FTC has sent over 90 letters to high-visibility advertisers and mega influencers, reminding recipients of the obligation to clearly disclose and visibly any important link in the influencer. posts. This type of emphasis on education rather than punishment is another way of looking at future action by Canadian authorities.
Appropriate and legal marketing is seen as a shared responsibility. When regulators look at influencer marketing, they look at all the entities involved and hold everyone accountable. This includes not only the influencer and the advertiser, but also the intermediaries such as the ad agency and the social media platform.
By respecting the Golden Rules, advertisers and influencers ensure both compliance with Advertising Standards Canada and Competition law and maintaining public trust (because, of course, the biggest risk of bad marketing is bad press). Proper disclosure of the sponsorship or promotion demonstrates the integrity of the advertiser and influencer. While the Competition Bureau is unlikely to tackle a specific violation, the implementation of the Golden Rules promotes consumer confidence.
Advertisers can take steps to adhere to the golden rules of influencer marketing by building strong agreements with the influencers they hire. These agreements should clearly state what type of content is acceptable and what type of content is unacceptable, including the requirement to disclose a material link and to only make statements about a product that are truthful and based on adequate testing.
To ensure compliance, advertisers should have the right under their influencer contract to remove an influencer post for any reason, as well as provisions that limit the advertiser’s liability if the ‘influencer “goes rogue” and does not follow the Golden Rules.
In light of the potential pitfalls of influencer marketing, it is crucial that anyone engaging in such activity seek legal advice from their advertising advisor to ensure they are following the Golden Rules.