I’ve been at a very useful seminar at the ANA/BAA Marketing Law Conference in Chicago, enjoying the talk given by the Global Advertising Lawyers Alliance (GALA). Its given me a great overview of what marketers need to be aware of when conducting influencer marketing in their relevant market.
Here’s what I took away:
- Self regulation in South America has proved to be the solution to the speed at which media and advertising is changing.
- In Venezuela , you have to be clear when you are advertising to consumers, e.g. you have to be transparent that it is advertising.
- Mexico and Costa Rica expressly prohibit stealth advertising. The rest of Central American countries have blanket prohibitions against misleading advertising.
- In Costa Rica, online advertising must always be identified as such, and the name of the advertiser must be mentioned.
- Advertising must be clearly distinguishable as such to the relevant audience. However, there has been no real enforcement in this space by the Turkish Advertising Board at the moment.
- Influencers are currently benefiting from this freedom and flouting the lack of enforcement. But the Turkish minister has recently warned consumers about the issue and reminded them how they can complain.
France, Germany, Belgium
- The regulation of influencer marketing is very similar to the US and the UK, with analogous rules about transparency of any content that has been paid for. If a disclosure is required in a post by an influencer that it has been paid for by a brand, the disclosure must be unambiguous, legible, within the body of the marketing communication
- Interestingly, there is a danger of criminal prosecution in France and Belgium, if advertisers try to advertise by stealth . If prosecuted, advertisers can be fined a maximum fine of up to 1,500,000 Euro.
- My colleague Brinsley Dresden reviewed the position in the UK.
- In the UK, we have a 2 fold test: (1) does the brand have editorial control and (2) has the brand paid the influencer. If the answer is yes to both, there will be a need for a disclosure, such as #advert.
- Brinsley mentioned an ASA adjudication against Alpro, involving a Twitter post by AJ Odudu, which didn’t include any disclosure. In order to work out whether Alpro had editorial control over the posts or not, the ASA insisted on seeing the contract between Alpro and AJ Odudu. The ASA looked at factors such as who approved the content and who owned the IP in the posts (and concluded that Alpro did have editorial control).
- Brinsley pointed out that the CAP Code states that marketing has to be “obviously identifiable”, whereas the Unfair Commercial Practices Directive 2008 talks about advertising needing to be “clearly identifiable”. Brinsley queried whether there was any difference in the two standards, and whether this meant the CAP Code could be challenged (Because the Unfair Commercial Practice Directive is a maximum harmonisation Directive).