The Advertising Standards Authority (ASA) is the UK’s independent advertising regulator, tasked with ensuring that advertisements across UK media, including social media, adhere to the advertising rules laid out in the CAP Code. Essentially, the ASA makes sure that ads across the UK media, including social media, stick to the advertising rules. They have been administrating the non-broadcast Advertising Code for over 50 years and the broadcast Advertising Code for over 10. They work by setting and establishing rules that anyone in the media has to follow. ASA also responds to concerns and complaints from consumers and businesses, from which they take action to ban ads that are misleading, harmful, offensive, or irresponsible.
What are the Advertising Codes?
ASA has The UK Code of Broadcast Advertising (BCAP Code) for media such as TV and radio, and The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) for other forms of advertising. For social media advertising, the CAP code is the rule book that all content creators must follow. This includes information about how to conduct traditional ‘paid-for’ ads, but also advertorials and affiliate marketing. The full CAP code can be found here.
What happens if someone breaks the CAP Code?
If a content creator does not follow the CAP code, they are liable for sanctions. Recently, some influencers have been in the spotlight for failing to disclose ads on their Instagram accounts. One of the main rules of the CAP code is that it must be obvious to consumers before they read, ‘like’ or otherwise interact with a social media post if what they are engaging with is advertising.
In June 2021, ASA set up a non-compliant influencer webpage that would name influencers who, despite warnings, either repeatedly failed to disclose when their content was an ad or failed to provide assurances that they would do so in the future. The influencers on this webpage are subject to enhanced monitoring and will remain on the page for a minimum of three months.
Previously, if an influencer is highlighted on this webpage and continues to break the rules, ASA has taken out ads against the influencers in question, alerting consumers.
The ad stated: “[Name] has been sanctioned by the UK’s ad regulator for not declaring ads on this platform. Be aware that products and services recommended or featured by this influencer may have been paid for by those brands. Our non-compliant social media influencer page at asa.org.uk is regularly updated to inform consumers of those who break these rules.”
Molly-Mae Hague Breaks ASA rules… for a third time
Commonly, former Love Island stars break the rules. The likes of Amber Rose Gill, Jess Gale, Eve Gale, Belle Hassan and Anna Vakili have all been added to ASA’s non-compliant influencers webpage.
One of the most popular influencers from the famous villa, Molly-Mae Hague has faced scrutiny over her lack of transparency when it comes to ads. In July 2022, the 23-year-old had an Instagram post promoting the clothing brand Pretty Little Thing (PLT) banned for not telling her followers that it was an ad. She posted a picture of herself in a PLT dress, with a link, which is a break of social media marketing rules without the disclosure of it being an advertisement. As this was Molly’s third offence, ASA did not take this breach of the rules lightly.
All paid-for-endorsements must be obvious, typically by using the hashtag #ad. Even if Molly-Mae did not get paid for that exact post, she has a contractual relationship with PLT and so it is classed as an advertisement.
ASA responded with “We considered that while some of her followers may have known that she was creative director at PLT, it was not immediately clear to all consumers that she had a commercial interest in PLT from the post itself.
“We therefore concluded that the commercial intent behind the story was not made clear and upfront and it was not obviously identifiable as a marketing communication.”
What You Need to Know About the CAP Code, Social Media and the Law
The Advertising Standards Authority (ASA) continues to escalate its actions against UK-based influencers who fail to properly disclose their advertisements. The ASA has been actively monitoring and publicly naming influencers who do not comply with advertising rules, especially those who do not clearly label their posts as ads.
Some key things to remember are:
- It is important to have a social media policy, freelancers and organisations. It should be clear and set reasonable and compliant guidelines.
- The UK has a data protection act and GDPR guidelines that must be followed whenever you are dealing with personal data. Personal data is any data that comes from an individual. Therefore, a data processing agreement is highly important to ensure that everyone is following correct procedures when handling data. If you are a freelancer and require a data processing agreement, check out our Social Media Freelancer Legal Pack.
- Influencer marketing has developed greatly in recent years. Working with influencers is a business transaction and as such it needs to follow the relevant guidelines. If an influencer is advertising your brand or product in exchange for something you provide, it is an ad and must be labelled as such. There should be a contract of expectations so that the transaction runs as smoothly as possible.
- When sharing other people’s content, it is important to follow ‘fair use’. You should not subtract the value of the content and the original source should always be referenced if possible. It is often important that you request the use of someone else’s content, for which a Copyright Permission is required.
- If you require someone to take down content that breaches your copyright rules, you may wish to submit a Copyright Infringement form. It is highly effective. If you receive a copyright infringement form from someone else, you should adhere to their wishes and remove the content in question.
- If you wish to run competitions, ensure that you do so legally by considering your capacity, transparency and accessibility. To find out more, read our Prize Draw Terms and Conditions.
Find Out More
For more information, watch this video with Luan Wise (me) and Janet Alexandersson, Legal Strategist, recorded for The Lighthouse Social Summit, March 2022.