Influencers and social media, hidden advertising on Instrgram

On March 5, 2021, the Advertising Jury of Autocontrol issued a decision upholding a complaint against a telephone and electronics company for breach of the Code of conduct on the use of influencers in advertising. The Jury qualified as surreptitious advertising three posts on the Instagram profile of journalist Sandra Barneda, considering that consumers could not clearly and unequivocally identify their advertising nature.

Controversial materials and allegations of the company

It all began with three posts on the journalist’s Instagram profile about a cell phone model of the company, all of them with similar content. They included reflections on everyday life (e.g., her Christmas plans, life mottos, etc.), a tag of the company’s Instagram profile in Spain, as well as hashtags about its products or about belonging to a team led by the company, and the hashtag #AD.

The company argued that the journalist’s followers would understand that the posts clearly and manifestly identified their promotional nature for the following reasons:

• The posts include hasthags about the company’s products, about belonging to a team, and the journalist’s link to this “team”.
• The texts accompanying the posts mention the company, which indicates a link between the company and the journalist.
• The hasthag #AD was well positioned and visible, distinct from the rest of the text.
• In all the posts, the journalist tagged the company.

Reasoning and conclusions of Autocontrol

The Jury of Autocontrol assessed whether the posts complied with the general identification principle that governs all advertising activity under the Code of conduct and sector-specific regulations. The Code requires that all advertising content posted by influencers must be identifiable as such by its followers.

Rule 3 of the Code establishes cumulative requirements for any content to be considered advertising: (i) it must be aimed at promoting products or services; (ii) it must be published within the framework of collaborations or reciprocal commitments (for example, through payment or other consideration); (iii) the advertiser or its agents must exercise editorial control over the published content (establishing in advance all or part of it, or validating it).

On the other hand, content of a purely editorial nature is not advertising, nor is content posted by influencers on their own initiative with no relation to the advertising company or its agents.

The advertising nature of the influencer’s posts was not disputed: the company expressly acknowledged it and based its defense on the the existence of a link with the journalist.

In its reasoning, the Jury considered that the posts were not clearly and manifestly identifiable as advertising. Its reasoning was as follows:

• The posts and their location do not allow users to disinguish whether the content is advertising or whether their audience is looking at a personal opinion, feeling or reflection. The posts were published on the journalist’s Instagram profile together with images of her daily life. They were not published through the company’s own channels (its website or social media).
  
  Also, the journalist included the advertising material as part of the natural editorial content of her posts. The Jury considered that the audience would “take it as just another opinion published on her account, when the ultimate purpose is to promote the brand (…) disguised as a personal and informative message.”

• Mention of specific product brands may take place in posts that have both editorial and advertising content.
  
  The Jury recalls that influencers often refer to brands without collaboration agreements or an advertising purpose in purely editorial posts. Therefore, the mere mention of the company or its products should not rule out the informative nature of the message.

• The advertising notice through the hashtag #AD is not identifiable either by its wording nor by its location. The Jury underlines that it is not explicit, immediate or appropriate to the social network in which it is included, and it does not comply with the Code.
  
  The hashtag #AD does not allow consumers to unequivocally identify the advertising nature of the Materials. Its use is not clear or descriptive of the collaboration, but rather an abbreviation in another language. The Jury warned that final consumers may not be aware of its meaning.
  
  Finally, the Jury critized that the hashtag appeared in last place and among other indications, with a high risk of going unnoticed—especially if we consider that users accessing from their phone had to click on “more” to see it, not being able to identify it at first.
  
  For the case of Instagram, the Code advises “including the identifying word or tag in the caption above the photo or at the beginning of the displayed text.”

Therefore, AUTOCONTROL upheld the complaint, declared the infringement of rule 5 of the Code and urged the rectification of the posts.

Since its entry into force in 2021, the Jury of Autocontrol has issued numerous decisions on influencers, following the steps of other authorities in the advertising self-regulation sector such as the British one. After drafting the Code in just a few months, work is being carried out to develop its interpretation criteria.