There has long been a debate in football about who is the GOAT: Ronaldo or Messi? In December 2022, we saw Messi captain the Argentine team to World Cup victory in Qatar, cementing his place in the minds of many as the Greatest Of All Time. Off the pitch, the UK's Advertising Standards Authority ("ASA") have considered Ronaldo's GOAT-like behaviour on social media, where he has been 'Guilty of Overlooking Advertising Tenets'!

In this blog we highlight the salient ASA rules that influencers should be aware of and some recent examples of enforcement action the ASA has taken in respect of social-media posts contrary to the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the “CAP Code”.)

It should be noted that the Competition and Markets Authority (CMA) can enforce consumer protection law, namely the Consumer Protection from Unfair Trading Regulations 2008, which aims to prevent unfair practices being used by traders and businesses (including influencers & content creators) when dealing with consumers, however, this blog focusses solely on ASA rules.

What is the CAP code and what rules are there for influencers to be aware of? 

The CAP Code is the code of practice for advertising in the UK, enforced by the ASA, containing rules to be followed by advertisers and influencers alike. At its core, the CAP Code’s general principles include the need for advertising to be not misleading and legal, decent, honest, fair and true. The CAP Code applies to non-broadcast advertising, sales promotion, and direct marketing in any form, including social media content.

In the UK, there is no minimum number of followers or subscribers that an individual must have to be considered an influencer. If you have been paid by a brand to advertise a product on your personal accounts, the ASA will view you as an influencer. The key rules to note per the CAP Code are, as follows:

• marketing communications must be obviously identifiable as such. Followers and subscribers should know they are looking at an ad;
• the audience should quickly recognise the message as an advertisement. Influencers should not pretend that they are acting as a customer; and,
• influencers must make it clear that adverts are adverts (i.e. by labelling them as such).

What enforcement options are available to the ASA? 

Aside from the damage to an influencer’s reputation that non-adherence to rules designed to protect consumers might attract, there are numerous sanctions which the ASA can deploy, depending on the circumstances.

Such sanctions range from adding an influencer’s details to the ASA’s dedicated non-compliant social media influencer page, or for the ASA to run targeted ads, alerting social media users when an influencer has repeatedly failed to properly disclose advertising. For continued non-compliance the ASA can onward refer to enforcement partners, namely the CMA, which could have more serious consequences.

Are there any recent examples of ASA enforcement? 

Cristiano Ronaldo made two social media posts in October, one for a herbal nutrition product and one for a muscle massager. There was nothing in the posts indicating that they were sponsored content. This generated complaints to the ASA, to which they responded that Ronaldo had potentially breached the CAP Code. The ASA have expressed their concerns to Ronaldo, accompanied by guidance on best practice.

Ronaldo is not the only football influencer facing criticism from the ASA. In a December 2022 ruling, the ASA found that Rio Ferdinand breached CAP Code 2.1, which states that "Marketing communications must be obviously identifiable as such". The former footballer had made several tweets in paid promotion with an entertainments company without clearly identifying them as ads. The ruling described the contract governing the adverts as containing language such that "all social media posts should be "labelled with appropriate disclosures", and "include '#ad' at the beginning of each post." This is not uncommon, with most influencer contracts encouraging compliance with the CAP Code.

Many influencer contracts will include payment terms which are set to milestones such as views or 'conversions' (the number of people to click a link which is unique to the influencer). There is therefore often a monetary incentive to make the ad as appealing to followers as possible – which may include burying the disclaimer that the content is sponsored, or not including it at all. Where influencers decide not to uphold the advertising standards, they leave themselves exposed to potential complaints and ASA rulings.  When an influencer routinely posts adverts which breach the ASA guidelines, they can be added to the ASA's public list of 'non-compliant social media influencers'. Appearing on this list can seriously impact an influencer's ability to find sponsorship from reputable brands.

How can athletes ensure their sponsored posts are compliant?

It is important that both businesses and influencers themselves understand the rules that apply to influencer marketing – both the CMA’s and the ASA’s investigatory and enforcement powers- and implement risk-mitigating strategies for online brand promotions.

If in doubt, consider your advert from the consumer's perspective. The test here is whether the consumer would be able to determine that you received payment to make the post, and that the commercial relationship is disclosed in a clear and prominent way - the main point to remember is to make any advert obvious. Most influencer marketing appears alongside editorial content and is presented in a very similar style, so it is not always immediately obvious to a consumer when something is or is not an ad from the context alone.

ASA guidance differs across different social media platforms. For example, on Instagram the post should be labelled as an advert on the photo itself as well as the accompanying caption, whereas for YouTube the videos should be labelled as an advert in the thumbnail and/or title – otherwise the advert may be seen as non-compliant. It should also be noted that any social media post that falls within the ASA’s remit has to comply with the CAP Code in its entirety.  Advertising in any form therefore should not, amongst other things, materially mislead consumers or cause serious or widespread offence. Some sections within the CAP Code are also sector-specific and have specific rules for product types (e.g. Foods, Alcohol, Gambling) must comply with specific rules.

For further guidance, including examples of acceptable and unacceptable labels, please download a copy of our comprehensive Influencer Marketing Guide.