2019 is being heralded as the year that Influencer Marketing is tidied up. Now that brands, agencies and consumers have switched on to its strengths and weaknesses there is a pressing need for clear, concise regulation.  

 The trouble is, without incredibly succinct rules the industry is rife with differing opinions on how things should be done. Furthermore, with the majority of complaints coming from consumers, we also have to consider that best practice has to be understood not only by professionals, but by the general public who don't have any practical industry experience or understanding of subtle nuances that those who work in the space might.   

 Currently the weight of the responsibility sits with the ASA but recently the CMA and CAP have stepped in to help share the load. But do you know the differences between them? As a further step, consider the need to remember the impact of self-titled industry watchdogs; purpose built Instagram vigilantes and individual consumers alike... 

 To help you get to the bottom of it all (and it's not an easy thing to master), below is a round up of the different bodies and individuals you should be most aware of...

The Advertising Standards Agency (ASA)

The ASA is the UK advertising regulator, which ensures that UK ads adhere to 
the Advertising Codes, which require that ads are legal, decent, honest and truthful. For the most part, the ASA works by responding to concerns from consumers and businesses - rather than proactively monitoring ads (although this does sometimes happen). They then take action to ban or amend adverts that are misleading, harmful, offensive or irresponsible.  

 The ASA can enforce sanctions and if a case is ruled on, influencers can be fined to an unlimited amount and jailed for up to two years. The courts can also confiscate the financial benefits gained from the offending content. It's important to note that this hasn't yet happened in the UK. In January this year the ASA did pull up a group of celebrities on their disclosure for various projects, but no fines were issued.  

 The equivalent body in the USA, the FTC, have started to issue fines. If you want to review an example have a read of the dispute with CSGO Lotto  here. 

Committee of Advertising Practice (CAP)

This is the ASA’s regulatory arm, which set the guidelines for the industry. CAP is responsible for writing and maintaining the UK Advertising Codes, and do not often issues any complaints themselves.  

 The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing applies across all non-broadcast channels including online and on companies’ own websites, print media and direct marketing.  CAP also provides training and advice to help businesses and marketers stick to the rules.  

The Competition and Markets Authority (CMP)

The CMA teamed up with the ASA to create their  Influencer Guide  as a joint initiative in September 2018. In 2019 the CMA also secured a formal agreement from a number of celebrity Influencers vowing to make clear whether payment, gifting or other benefits were involved when endorsing products. If you need a recap of the latest regulations, make sure to polish up your knowledge with our article breaking down the most recent update  here

 As mentioned in our previous article, the real likelihood of being given a prison sentence for misrepresenting a relationship online unlikely, and very few fines have been issued in the UK. It has to be remembered that these organisations have to watch out for much more alarming issues within the industry (eg: sexism, racism, fraud) so the chances of a single influencer forget to put "#AD" on an Instagram post being a major priority is very low. 

 If it’s within your powers to amend or remove an incorrectly represented post when asked then that’s likely to be sufficient. Rulings and lists of complaints made against Influencers can be found online through the relevant bodies, sharing the case against the offending person or account with the public. While these organisations certainly provide oversight, because the legislation around Influencer Marketing is still in development, there is another offshoot of the watchdog pack that has emerged – the social media vigilante.  

Who are the Unofficial Watchdogs hoping to Reform Social Media?

The furore around Influencer disclosure and lack of clarity has resulted in some followers taking matters into their own hands. Social media has bred its own strand of vigilantes, and while they’re unable to parse out punishments in the form of fines or jail sentences, instead they utilise the tools at their disposal: the call-out.  

 Instagram has offered a platform not only for the Influencers in question, but also a new breed of critic, rising up to call out scams, expose copy-cats and highlight misleading content. They also offer a veil of anonymity for commentators, and solicit opinions from their followers to create an atmosphere of empowerment for those that feel cheated or deceived online. Two of the most prevalent voices of this type are the accounts @diet_prada and @esteelaundry.  

 @diet_prada are the stars of the call-out world. Started as an account highlighting ‘inspiration’ that fashion designers and brands sometimes take from each other (either by mistake or intentionally), now they’re 1.2 million followers heavier, and with the backing of their ‘Dieters’, the duo are known for championing fairness in the fashion business, calling out cultural appropriation and abuse in the modelling industry – as well as making fun of the Kardashians. They’ve also called out Influencers like @whowhatwear’s Danielle Bernstein for her jewellery collection with Nordstrom in the US – the products looked baffling similar to pieces she owned herself, some of which are from rival brands. Diet Prada's intention is to punch up on behalf of the little people and independent designers, unable to hand out financial sanctions like fines, but still able to fan the flames of controversy and call perpetrators to account. 

 @esteelaundry takes on the beauty industry, mixing exposes with news, gossip and dupe products. Unlike Diet Prada, the collective behind the account have remained anonymous, but they have similarly impassioned audiences (many of whom also work in beauty), who become contributors as stories break. Recent revelations have included racial discrimination, child labour practices, as well brand missteps like Sunday Riley forcing employees to write fake online reviews of their luxury skincare products. They have shown particular interest in how Influencers work with beauty brands, and the vast fees earned by those with the biggest accounts, as well as being among the first to break stories like the doubt that plagued Kendall Jenner’s heart-rending claim that acne-treatment brand Proactiv solved her skin problems. They have also called for public accountability over Dior inviting Kuwaiti Influencer Sondos Alqattan following her complaints about changes to the country’s kafala system {which now gives Filipino migrant workers the right to days off and to keep control of their own passports), naming her #UglyInside. 

 For many followers, the accounts have become somewhat of a guilty pleasure, especially for those who work in the affected industries. But much like the good intentions held by other internet forums such as Mumsnet, these exposés can be incredibly harsh to ensure Influencers and brands to respond and defend themselves. It’s even been described as ‘trial by Instagram’. 

 The consensus amongst the accounts seems to be that if the legally-mandated organisations aren’t able to keep Influencers in hand and regulate the representation of advertisements on social media, then followers need to take matters into their own hands – Diet Prada and Estée Laundry receive countless DMs every day calling for the accounts to escalate complaints and call people to account. As mainstream news outlets downsize, watchdog accounts are taking over as the primary destinations for industry news. 

What’s next for Influencer Watchdogs?

In March 2019, a number of broadcasters, mobile networks and internet service providers including the BBC, Channel 4, Sky, BT and TalkTalk called for increased regulations over the online space. Their letter called for “independent scrutiny of the decisions taken [by social media platforms], and greater transparency” on social media sites, and the internet as a whole. In response, UK government spokespeople have said that they are “committed to further legislation”– in short, it’s a recognised issue, but until a dedicated agency (or department) exists with the capacity to follow and understand new developments in how Influencer media is created and shared this may continue to fall to the ASA.  

 We recognise the challenges this team would face – the sheer amount of content to address, the capacity needed to keep track of platforms and updates, not to mention what it means to try and implement any sanctions on a grand scale – but until this is possible, there will still be room for watchdog accounts to rule their own spaces in the online sphere.  

Daniela Rogers