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Apparently not, the Competition and Markets Authority (CMA) led a recent investigation into celebrity/social media influencer’s social media posts. The key piece of consumer protection legislation relevant to the CMA’s investigation is the Consumer Protection from Unfair Trading Regulations 2008.

The CMA found that paid product placements were not always being made clear, leading to fears that consumers could mistake them for genuine personal recommendations. It has been an area of ambiguity while the law lagged behind the rapid expansion of popular bloggers, vloggers, celebrity and social media personalities (influencers).

Influencer’s Instagram accounts offer a quick and easy means for businesses to promote sales, as millions of followers see where an influencer goes on holiday, what brands they are wearing, which products they use and more. Sometimes influencer’s posts might have numerous hashtags that follow the image’s captions, so is it enough to include a variation of one or all of the following: #Ad #ad #spon #sp #sponsored #gift #gifted #collab? Or is it enough to tag that brand into the post e.g @BrandName? Do you need to activate Instagram’s Paid Partnership feature?

Simply tagging a brand or business in the text, picture and/or video of a post without additional disclosure was cited as one of a number of examples of practices that the CMA said “do not go far enough to comply with the legal requirements“. It is not just about using the right words but also where and how these words are being used that is important e.g. it is not enough to bury #ad amongst numerous other hashtags, simply tagging the brand, or thanking a brand without additional disclosure.

Andrea Coscelli, chief executive of the CMA, said: “influencers can have a huge impact on what their fans decide to buy. People could, quite rightly, feel misled if what they thought was a recommendation from someone they admired turns out to be a marketing ploy. You should be able to tell as soon as you look at a post if there is some form of payment or reward involved, so you can decide whether something is really worth spending your hard-earned money on.”

The CMA has secured formal commitments from 16 social media influencers including Rosie Huntington-Whiteley, Millie Mackintosh, Ellie Goulding, Rita Ora and Zoe Sugg (aka Zoella) that they will be clearer in their online posts to highlight when they have been paid, incentivised or otherwise rewarded to endorse or review something (including when something has been given for “free”).

The CMA’s issuing of further guidance alongside the high profile celebrity commitments sends a strong message to influencers, businesses and brands that transparency is vital if they want to remain on the right side of consumer law.

Recent headlines concerning the ill-fated Fyre Festival have highlighted how social influencers and the Instagram expectation can play out in reality. Fyre Festival, which promised a VIP experience (promoted by influencers, most notably Kendall Jenner, Bella Hadid, and Emily Ratajkowski) on the island of Great Exuma in the Bahamas, turned into a nightmare situation as attendees were left stranded. Billy McFarland, the 27-year-old founder of the company behind the festival, was sentenced to six years in prison and faces a $26 million forfeiture order. Netflix and Hulu have released a version of the event which is available to stream. It will be interesting to see if consumers continue to place the same level of trust in influencers without proof of the concept.

If you wish to discuss this topic further or have any other questions, please contact Lauren TillottNick Philips, or any member of the Edwin Coe Intellectual Property team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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