With the growth of social media there has been an influx of content creators or influencers, and they are growing in popularity among users of social media. Brands have taken advantage of this business prospect through the use of influencer advertisement. Influencer advertising is a form of marketing, which involves a business collaborating with an individual to create promotional content. The general rules for influencer advertising are that a person must disclose when they are endorsing a product or service and that the content must be truthful to their experience.
Brand Ambassadors, content creators, influencers, celebrity endorsers, and social media personalities when promoting products or services have the same obligations as traditional advertisers, regardless of their following or if they were remunerated by gifts or other incentives. They must comply with the Consumer Protection Act 2007, which prohibits commercial practices that are deemed to be unfair and misleading to consumers and promotes transparency in advertising. Therefore, an individual must make clear that posts are of commercial nature. The Act also prohibits any advertising that is false or deceptive, the advertisement must be transparent and an accurate portrayal of the individual’s experience.
The Competition and Consumer Protection Commission (CCPC) and the Advertising Standards Authority of Ireland (ASAI) have established guidelines for labelling content as an advertisement. Influencers are required to label their ads or promotional content with #Ad, #Sponsored or #Partner. The objective is so consumers will be able to instantly recognise promotional content. The sponsored post or advertisement must also be honest and accurate in respect of the product or service and the price.
It is important to have an enforceable agreement in place when partnering with a brand or an influencer as influencers are not the sole party who has legal obligations. Brands are required to inform and make sure influencers clearly label their advertisement and follow and adhere to the consumer protection laws and advertisement regulations. Brands are co-responsible for the accuracy of what is being presented in influencer advertisements.
The ASAI is responsible for investigating complaints and issuing rulings on the application of advertising codes. It may also request the modification or removal of non-compliant ads or posts. It may also refer matters to the CCPC or other authorities.
Enforcement of advertising standards is within the remit of the CCPC. It may investigate advertising practices and impose on the spot monetary fines for breaches, or it may prosecute matters through the Courts. The rules and the consequences apply regardless of the following of the influencer and apply equally to content creators who might not have been paid for the post; they might merely have been gifted the product or service or received a non-monetary benefit. This is why it’s important for both brands and individuals to be informed about the rules of influencer advertising.
The above is provided for information purposes and is not intended as legal advice. Fitzsimons Redmond LLP would be happy to discuss your obligations as an advertiser. Please contact us on 01-676 3257.
By Mary Kate Tweedale, intern and Lisa Quinn O’Flaherty, partner at Fitzsimons Redmond LLP
