Yesterday’s ASA (Advertising Standards Authority) report on influencers highlights that over a three-week period, 65% of the Instagram stories monitored (over 15,000 stories) were not clearly labelled and identified as advertising content (as required by the CAP Code).

This ASA report has put influencers promoting products on social media back under the spotlight as so many have failed to meet the compliance standards required. The headlines focus on the fact influencers may be named and shamed if they don’t comply, but what does this mean for the brands and retailers that build campaigns around these partnerships?

The background

The code requires that any paid for advertising is clearly labelled with #ad or similar and social media companies have introduced tools to allow brands to advertise more transparently on their platforms, such as through the “Paid partnership” tag on Instagram. For a while, it did seem that celebrities and influencers were using the ad hashtag, after a few high-profile mistakes, but this has clearly fallen off the radar in recent times, at the same time as massive growth in this form of advertising.

The main issue is the huge disconnect between the ASA focus on protecting consumers from subliminal advertising and the influencer’s priority of maintaining an “authentic” image that is not tainted by sponsorship. The appeal of these social media pages is that they give followers an insight into the “real” life of the influencer or celebrity, which is aspirational and which many followers will want to emulate. If the followers realise that the content is only being promoted due to the financial relationship with the advertised brand, the content will naturally lose some of its appeal. In turn, this can lead to the influencer losing followers and this diminishes their appeal for other brands. It’s a bit of a vicious circle.

What does it mean for brands and retailers?

In the early days, big brands worked very closely with any talent representing their brand to ensure that the content they pushed out set the right tone and was compliant. Brands have moved away from this with influencers, most likely due to the push by influencers to maintain control of their channels and their image. In turn, brands have likely left responsibility for compliance with the influencer, which is not always the best move. Brands should consider doing their own due diligence on an influencer’s track record for compliance as part of their partnership campaign planning.

Brands have a lot to lose by picking the wrong influencer and falling foul of the CAP Code. Consumers often put a lot of trust in the accounts they follow and if they feel they have been misled or manipulated, they will quickly switch off from the influencer and the brand. It can be very difficult to come back from online setbacks as numerous brands have shown; but well targeted campaign can be hugely successful. Over the coming months, expect to see more collaboration and guidance from brands with influencers to make sure they hit the right mark. But if the media spotlight moves on to something else, you can expect to see these practices slipping back in.

 The high-profile spat between Dolce and Gabbana and Diet Prada continues to create quite a stir among fashion circles – long after the now-infamous D&G ad campaign in 2018, which set this whole public affair in motion. The Italian brand has accused the self-professed ‘fashion watchdog’, Diet Prada, of fuelling a large-scale backlash to its misjudged ad, by unleashing a volley of social media content, as well as its contended “illegal publication of Stefano Gabbana’s private conversations” on Instagram.

Dolce and Gabbana alleges that by way of their heavily followed Instagram account, Diet Prada’s founders initiated a “smear campaign”, consisting of “serious and repeated defamatory conduct” aimed at harming the Italian brand to the value of €3 million in damages.

While the long-running legal battle is being played out in foreign courts, it poses some very pertinent questions that are as relevant to UK companies as they are to global brands – namely, the growing role social media is playing, not only in acting as a medium for defamatory comment, but being used as a tactic for applying pressure on the opposing side during legal proceedings.

Applying pressure in the hope of a settlement is nothing new; using such a public platform in which to do so is certainly a growing trend. Social media has popularised and accelerated many things in society – its vast reach, instant impact, and widespread adoption, makes it a perfect channel for engaging with untapped audiences and amplifying your message.

However, there’s a big disclaimer that comes with using this method to interact with people – whether you’re a business or an individual. Defamation occurs when someone causes substantial harm to the reputation of another by publicising a false statement – inappropriate or ill-considered written words, posting private correspondence in which allegations about someone else are made, sharing, forwarding or commenting on news or gossip, will all potentially be grounds for a libel case.

It’s so commonplace to use the likes of Instagram as a means of communicating with people, it becomes second nature to share material on the platform; it’s vital however that companies think twice about using social media channels as a pressure tactic in an ongoing legal case, or as a means of attacking competitors given the risk such behaviour could expose you to.

It’s essential to tread carefully when using social media and other media outlets for any form of publicity, whatever the motivation, and equally important to recognise when it’s happening to you as a business. When does a social media post cross the line? Where do the boundaries lie? Has something happened which harms your or your business’ reputation? Can you legitimately object and challenge the way in which a competitor has spoken about you on-line?  Once subject to targeted attack, the erosion of your reputation can be difficult to recover from.

As a business, it’s important to understand your rights when it comes to instances of defamation and the breach of privacy of your staff and directors, and to engage in PR and other business strategies appropriately through the right channels. Dolce and Gabbana’s bitter duel with Diet Prada has been played out in a very public way over a number of years. Businesses need to avoid airing their dirty (even if fashionable) laundry in public – it is ultimately and inherently unattractive, being publicity for all the wrong reasons. Instead, harnessing the power of social media positively to facilitate the creation or exchange of information in order to promote a business is much more likely to give that business greater longevity and credibility.