Kathleen Henning, Trade Mark Executive and Corinne Cole, Principal at AJ Park Law Limited, share an overview of the recent update from the Advertising Standards Authority as they release new advertising standards for influencers.
Influencers can exert significant power over the purchase of products and services by consumers. To date, the activities of Influencers have largely gone unchecked, but this is changing with the new advertising guidelines written by the Advertising Standards Authority (ASA) which came into force on 14 September 2020.
After consultation with a range of individuals, organisations and agencies, the ASA has released new responsible advertising guidelines for Influencers in New Zealand. These guidelines are aimed at supporting the identification of Influencer advertising content and highlighting the collective responsibility of Influencers and advertisers to ensure that ad content is clearly identified as advertising by consumers.
Terminology
An Influencer is ‘someone who has access to an audience (regardless of size) for their own organic content and ad content they generate income from and … has influence over the choice, opinion or behaviour of their followers’.
The guidelines do not provide a definition for ‘advertiser’, but an advertiser is generally understood to be a person or company that advertises a product, service or event. Advertisers often engage Influencers to advertise their products.
What content qualifies as advertising?
The ASA’s broad definition of ‘advertising/ advertisement’ includes any Influencer content that is controlled directly or indirectly by an advertiser, for payment. ‘Payment’ is assessed broadly to include benefits like money, free products or services, credit, event tickets, travel, product loans.
Examples of Influencer content that would qualify as advertising are:
- content that is subject to approval by an advertiser
- content that is paid for by the advertiser (in money, perks, or free goods and services)
- content about a brand from an Influencer who is the brand ambassador
- content that includes a discount code or affiliate code.
How should advertisements be identified?
The guidelines specify that Influencers and advertisers are responsible for ensuring that all advertisements should be identified as such. If it is not immediately obvious to consumers that Influencer content is an advertisement, then clear, prominent and upfront disclosure is needed. The ASA recommends using labels that are:
- up front – consumers need to know the content is an advertisement upon their first interaction with the content
- prominent – labels must be at the start of a post or in the title or thumbnail, and must be large and clear enough to be noticed
- understood by consumers – commonly understood words like ad, advert or advertisement should be used
- separate – the ad label should be separated from other labels and hashtags
- appropriate for the platform – the label should be clear regardless of the channel or social media platform used
- individual to each post – blanket disclosures are not sufficient.
What are the consequences of non-compliance?
If Influencers and advertisers do not comply with these guidelines, a complaint can be made to the ASA. If the ASA investigates the matter and upholds the complaint, the Influencer must remove the advertisement and the decision is released to the public and published on the ASA website. As the decision will include the names of the Influencer and advertiser, Influencers and advertisers face a reputational risk if they fail to comply with these guidelines.
In addition to these new guidelines, Influencers and advertisers should also familiarise themselves with all ASA codes and relevant legislation that promotes responsible advertising.
Key takeaways
Influencers and advertisers should take note of the ASA’s new responsible advertising guidelines and ensure that all advertising content is clearly identified as such. This should be done by using labels like ad, advert or advertisement in a way that is up front, prominent and appropriate for the platform.
If you are interested in learning more about these guidelines, you can register for training with the ASA or get in touch with us at AJ Park.
Kathleen Henning is an executive in AJ Park’s trade mark team. She helps clients create, build and protect their brands by conducting trade mark searches, advising on trade mark viability and registrability, filing and prosecuting trade mark applications and managing trade mark portfolios. She particularly enjoys working with local clients who are new to the world of intellectual property. Connect with Kathleen via email or Linked In 
Corinne Cole advises clients in the areas of trade mark creation, strategy and ownership issues, as well as copyright, domain names and advertising. Her clients are predominantly start-ups and small to medium-sized businesses. While Corinne works with a very diverse client base, she has a particular interest in the cosmetic and skincare, fashion, and viticulture industries. Connect with Corinne via email or LinkedIn 
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