Social media advertising and marketing – when to #hashtag and when not to?

In these pandemic times, it is not surprising that Irish consumers are flooding the digital high street seeking out the latest trends and treats. To aid them in their purchasing quests, they are increasingly turning to their favourite social media influencers/bloggers for tips on what to buy. 

While businesses have long recognised the power of social media to create 'buzz' around a new product or brand, the past 12 months has seen a further uptake in this activity across many different sectors. There is an increased shift away from traditional forms of advertising and marketing campaigns towards a more digital and social media focused approach. 

This trend is very much on the radar of the Irish advertising watchdog – the Advertising Standards Authority of Ireland (the ASAI), which frequently adjudicates complaints relating to social media advertising. The Competition and Consumer Protection Commission (CCPC) is also taking note. The ASAI and the CCPC recently hosted a joint-webinar on 23 February 2021 to raise awareness about the need for compliance with the relevant laws and codes when publishing promotional content on social media platforms. 

On the same day, the ASAI issued an updated guidance note dealing with 'recognisability of influencer marketing communications' (the Guidance Note). This builds on previous ASAI guidance published for bloggers in 2018 and on recognisability in advertising on social media more generally in 2019.  While the Guidance Note provides helpful practical tips, advertisers and influencers/bloggers should be aware of the potential legal consequences of not following the rules when delivering promotional content through social media. 

In this insight, we summarise some of the key points from the Guidance Note, and identify the legal and regulatory provisions on which they are based. We also explain the role of the relevant regulatory bodies and ask the fundamental question – when to #hashtag and when not to? 

Is there specific legislation and self-regulatory codes that apply to social media advertising and marketing? 

Yes. The key legislation and self-regulatory codes that apply to social media advertising and marketing are:

Consumer Protection Act, 2007 (as amended). This prohibits 'traders' (which includes both the advertiser and the influencer/blogger) from engaging in unfair, misleading, aggressive or prohibited commercial practices. Breach of the legislation can have both civil and criminal consequences. The enforcement tools available to the CCPC under this legislation include requesting undertakings, issuing compliance notices, applying to court for prohibition orders and/or bringing prosecutions. 

EC (Misleading and Comparative Marketing Communications) Regulations, 2007 deals specifically with marketing communications. It prohibits misleading advertising and sets out specific legal requirements that apply when engaging in comparative advertising against competitors. The Regulations also include a 'prohibition order' remedy which can be applied for by competitors. Should 'traders' engage in comparisons which breach the legislation (i.e. are prohibited or misleading comparative advertising), it is open to an impacted competitor(s) to seek a prohibition order from the courts.   

The ASAI Code of Standards of Advertising and Marketing Communications in Ireland (the ASAI Code). This is the code on which the Guidance Note is based. It applies to commercial marketing communications including those published on social media and digital platforms. It includes general provisions relating to misleading advertising, and specific provisions on the advertising of certain types of products (e.g. health and beauty) and promotional campaigns.

What are the key tips for advertisers and bloggers/influencers when designing a social media advertisement or marketing campaign?

The following are some general tips, derived from both the legislative framework, and the ASAI Code and the Guidance Note, which advertisers and influencers/bloggers should be mindful of when designing a social media advertisement or a promotional campaign: 

  • Recognisability and transparency are key. Any social media post or blog intended for advertising or marketing purposes should be clearly disclosed to consumers. A social media influncer/blogger should:
    • Identify the advertiser, using appropriate hashtags (e.g. #ad #sponsored #paidpartnership). For expiring media (e.g. a story or fleet), the relevant disclaimer should be in each marketing communication. 
    • Make it clear when using affiliate links that they can earn commission from purchases (e.g. by using the hashtag  #AF)
    •  Not conceal a marketing communication as user generated-content or an independent review when it's been paid for by an advertiser and they have significant control over its content. 
  • It should be made clear to consumers that material is a marketing communication before they engage with it. Clear and legible font should be used at the beginning of the post or blog so consumers know it is a marketing communication. A disclosure below the fold on a website, in the T&Cs at the end of the content or in the 'see more' section will not be sufficient. 
  • Give full information. A social media post which includes an invitation to purchase a product should not withhold or omit information which would influence a consumer's purchasing decision (e.g. the price of the product).
  • Honesty is the only policy. Avoid exaggeration. Influencers/bloggers should be mindful not to make representations about a product/service which may be false or misleading and could cause a consumer to buy a product they might not otherwise have bought. Such representations might relate to the benefits to be obtained from the product, the composition or ingredients of the product, a price advantage or the availability of a product for a limited period of time. 
  • Claims must be backed up. Any claim made as part of a social media post which a consumer may regard as objectively true should be capable of substantiation with documentary evidence (e.g. the results to be obtained from a beauty product). 
  • Be careful about comparisons. Influencers/bloggers should avoid making any express or implied comparisons between competitors or products of competitors. This may constitute a comparative advertisement which is subject to strict regulatory requirements in order to be considered legally permissible. 

Who monitors and takes enforcement actions for breaches of the legislation and self-regulatory codes? 

The ASAI is Ireland's main advertising watchdog. While the Code is non-legally binding, it investigates complaints regarding advertising and marketing originating in Ireland. Complaints arising from marketing communications generated in another jurisdiction may be referred onwards through a cross-border co-operation framework (e.g. the European Advertising Standards Alliance).  

Both consumers and competitors can make complaints to the ASAI for alleged breaches of the Code. The process is free of charge. The outcome is normally published as a case report on the ASAI's website, and includes the name of the advertisers and influencers/bloggers. The ASAI generally directs that marketing communications found to be in breach to be withdrawn or amended. 

Consumers may also make complaints to the CCPC for breaches of consumer protection legislation, including misleading advertising. While the CCPC has wide-ranging legislative enforcement powers, it does not operate a complaints process similar to the ASAI. Rather, it adopts a strategic approach to complaints focusing on areas that are likely to bring the most benefit to consumers. Advertising and marketing practices have not been a focus of the CCPC to date, but that may be about to change. 

The Programme for Government published in October 2020 signals a potential move away from the current self-regulatory model operated by the ASAI, with the CCPC taking a more active enforcement role. In particular, it states that the CCPC will be directed to "focus on ensuring that there is full disclosure in relation to partnerships, sponsorships and other advertising relationships between media influencers sand brands, and that the obligations on social media influencers and the consequences for non-compliance are clearly set out and enforced".

It remains to be seen whether this proposal will come to fruition. For now, it appears that compliance is being encouraged in the first instance, which is consistent with the regulatory enforcement approach typically taken to consumer protection matters. But with this changing landscape in mind, never has it been more important to ensure clear, accurate and responsible #socialmedia #digital #advertising #marketing. 

For further information on this topic please contact Katie O'Connor, Mairead O'Brien or any member of the Litigation & Dispute Resolution team.

Date published: 16 March 2021