Influencer and brand under fire for failing to clearly identify marketing communication on TikTok (Jamella t/a GHD in association with Emily Canham)

Published on 15 January 2021

What pitfalls should brands look out for when using influencers for marketing communications?

The key takeaway

Advertisers are now generally aware that paid marketing communications must always be clearly identified as such, whatever the platform – but it remains the case that influencers have much less awareness. While this is the first ruling published by the ASA regarding a TikTok post, the main take-away here is the need for brands to provide their influencers with practical guidance and, where the relationship is an ongoing one, reminders on how to properly label their posts.

The ad

The ad in question was posted by influencer Emily Canham on popular video steaming site TikTok in June 2020. The TikTok clip showed Ms Canham using a set of branded GHD straighteners and hairdryer, with the caption “hiii just a lil psa there’s 20% off the GHD website TODAY ONLY with the code EMILY … #fyp #foryourpage”.

The complaint and the response

The ASA received a complaint that the ad was not obviously identifiable as a marketing communication and was therefore in breach of CAP Code rules 2.1 and 2.3 (Recognition of marketing communications).

Jamella Ltd, the company which trades as GHD, produced the contract between the brand and Ms Canham in response to the complaint. Under this contract, Ms Canham was obliged to produce a number of sponsored social media posts while at a music festival. As a result of the COVID-19 pandemic, the music festival was cancelled and so the contract was varied. Accordingly, Ms Canham was instead required to produce (i) a TikTok video on 26 May 2020, (ii) a YouTube video including a promotional discount code “Emily” and two sponsored Instagram posts across 13 and 14 June 2020. Jamella pointed to the fact that the TikTok post (dated 14 June 2020) was created without the brand’s oversight or approval and did not form part of Ms Canham’s contractual obligations to them. Jamella claimed that they had not compensated Ms Canham for the video, which in any event was later deleted from Ms Canham’s TikTok account.

The decision

The ASA upheld the ruling against the parties. In this case, the ASA understood that there had been a financial agreement between GHD and Ms Canham, under which she was paid to publish posts to her various social media channels and the ASA acknowledged that the TikTok post in question had been made outside the scope of this agreement. However, the ASA also noted that the post featured the same promotional code specified in the agreement to promote GHD. Regardless of whether Ms Canham had received commission for this specific post, because its use was linked to the original agreement, the ASA considered the post to be an ad for the purposes of the CAP Code. The fact that the post was clearly part of Ms Canham’s efforts to encourage her audience to purchase GHD products meant that the commercial nature of the content should have been clearly identified prior to consumers using the code.

The ASA assessed the TikTok post as it would have appeared contemporaneously on the app and found that there was nothing in its content, such as “#ad” placed upfront, that made clear to viewers that it was a paid marketing communication. The ASA concluded that the post was not obviously identifiable as such and was therefore in breach of the Code.

Why is this important?

The CAP Code is crystal clear on marketing communications – they must be obviously identifiable as such and that they must make clear their commercial intent, if that was not obvious from the context. This should not come as “news” to influencers; last year the CMA conducted a well-publicised investigation into influencer advertising and secured formal commitments from sixteen well-known celebrities – including the likes of Alexa Chung, Rosie Huntington-Whiteley, Rita Ora and others – that going forward they would clearly identify when they have been paid or received any gifts or loans of products which they endorse. The industry regulator bodies have published guides^[1]^, designed to prevent these mistakes from being made.

This ruling also serves as a timely reminder that brands have a responsibility to provide their influencers with the necessary information to ensure compliance with the CAP Code – it is not enough to assume that the rules are common knowledge. More and more influencers are rising to prominence, but often they are not formally represented and generally they have little experience with the rules. While having a written commercial agreement requiring an influencer to properly label their posts is highly recommended, further steps may be required to ensure compliance with the CAP Code. Brands may want to consider practical and user-friendly guidance to sit alongside influencer agreements to help to ensure compliance and avoid the headache of an adverse ruling.

Any practical tips?

Brands who elect to use influencers to promote their products should ensure that they provide sufficient information to their influencers to ensure compliance with the CAP Code. A written contract is the starting point, setting out each party’s obligations clearly, including the obligation to mark advertised posts as such. Almost as importantly though, brands should take a proactive approach to ensuring that their influencers remain alert to their disclosure responsibilities and are provided with practical guidance.

^[1] The CMA’s quick guide for social media influencers, marketing companies, agents and brands and CAP’s “An Influencer’s Guide to making clear that ads are ads”.

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