$21.1 Billion. That is the predicted value of the Influencer Marketing Industry in 2023 according to The Influencer Marketing Benchmark Report 2023 from Influencer Marketing Hub.
When compared to the $1.7 billion valuation in 2016, Influencer Marketing’s huge growth trajectory to date becomes clear. Such growth is even more remarkable as it comes against the backdrop of increased regulatory scrutiny and the accompanying risks of marketing in this manner. In particular, the UK’s Advertising Standards Authority (ASA) will hold a brand jointly liable for influencer content that breaches the CAP Code even where the brand has laid down clear contractual obligations and policies that the influencer should have complied with.
Indeed, just last month, the ASA updated its guidance for influencer marketing and we are still waiting to hear whether, as suggested by the DCMS, the UK government will extend the ASA’s remit to cover posts which are not strictly speaking an ‘ad’ (i.e. where there is an absence of both ‘payment’ and ’control’) and influencer with no relationship of any kind to a brand is gifted a product or service and they choose to write about it (read DLA Piper’s article on this topic here).
With the above in mind, it would be easy to conclude that influencer marketing is unstoppable. However, with over 76 million views of the hash tag #de-influencing by February 2023 (see an article here), we have collected some thoughts on what brands need to know about this trend:
- What it is. Effectively, ‘de-influencing’ is to ‘influencing’ what a ‘hatchet job’ is to a ‘glowing review’. This is a social media post explaining why you should not purchase something, potentially by exposing marketing puffery or a disproportionately high price-tag.
- What is behind it. Ostensibly, the movement is concerned with potentially one or all of the following:: 1. authenticity (bringing honest reviews to the forefront); 2. environmental considerations (encouraging consumers to analyse a product’s environmental impact and to consider its necessity); 3. spotlighting unethical practices (particularly in fast fashion production); and 4. promoting individual wellbeing (negating the need for 'status purchases' and promoting a ‘minimalist’ approach to consumption). However, it has been noted that some ‘de-influencers’, seem happy to recommend alternative products to the ones they are critiquing. As aptly noted by a Twitter user: “It's not "de-influencing" if you've got affiliate links on... cough. tiktok. cough.”
- What "saturation rates" are. Saturation rates are the percentage of influencers' total content that is sponsored. It may be an old workplace adage that "if you want something done well, give it to the busiest person". However, if influencers are being constantly engaged by brands, not only will their engagement rates plummet (as they are seen as being less ‘authentic’), but their likelihood of being targeted by 'de-influencers' increases.
- Where ambassadors come in. Instead of paid-for influencers, many brands are seeking to enter into agreements with well-known individuals on a personal, and qualitative basis. Here, rather than being paid to make content or post at a particular frequencies ambassadors are provided with access to a brand's products (often being able to select their desired products from the full catalogue) and to grow a dialogue in a more collaborative and sustained way. The obvious benefit being that the goodwill that attaches to the individual should rub off on the brand. If an individual naturally showcases a brand's products, it should, in theory, be more difficult to ‘de-influence’ because this would likely involve ‘attacking’ the individual ‘’As well. Of course, the long term nature of such deals can raise other issues where influencers go off message or act in a way that risks tarnishing a brand’s reputation (we won't name them, but we're sure you can think of more than a few celebrities who have been shed by brands over the last few years). As with any influencer arrangement, it is clear that careful due diligence about an ambassador and clear contractual obligations and ‘reputational’ termination rights will be essential (perhaps even with accompanying ‘disgrace insurance’).
- Where microinfluencers come in. There is no universally accepted definition of a ‘microinfluencer’ but the consensus online is that the term includes individuals with a social media presence of roughly 30,000 to 100,000 followers. Such individuals are sought after by brands as their not insubstantial reach comes with typically strong engagement rates. It should be noted that the ASA does not make a distinction between influencers and microinfluencers, all are equally subject to their oversight and the ASA instead defines an influencer as “any human, animal or virtually produced persona that is active on any online social media platform, such as Facebook, Instagram, Snapchat, TikTok, Twitch, YouTube, and others” irrespective of their number of followers. When it comes to “de-influencing”, smaller-scale influencers, who are not promoting multiple products (see "saturation" above) are less likely to be targeted by "de-influencers" and if they are, microinfluencers harder to dismiss as inauthentic.
- How influencer marketing regulation applies - Authenticity has a lot of cross-over with 'honesty'. Brands working with influencers need to be aware of "de-influencing" and "saturation" but also should take steps to identify how honest and upfront the influencers that they may engage with are being. Influencers, like all advertisers, must comply with the requirement to clearly identify advertising content (and not pretend they are an authentic consumer when they have been paid to promote a brand or certain products). To help with this, the Advertising Standards Authority publishes its "naughty list" i.e. a list of non-compliant social media influencers (who have not fulfilled the requirements of the CAP Code). For further guidance on labelling requirements for influencer marketing, view our Influencer Marketing Guide.
- What brands can do legally protect their reputations - When your products or brand are being unfairly maligned, there are options available. For example, if a de-influencer is saying things about a brand that damage the brand’s reputation and such posts have caused or are likely to cause ‘serious financial loss’ this could be defamatory (provided there is no defence - such as the statements being true or 'honest opinion' i.e. an opinion that was based on facts available at the time which an honest person could reasonably hold). It is worth remembering that it is not just words that can be defamatory; an Italian court recently held that use of emojis can be give rise to a defamation claim. In addition where a 'de-influencer' is being paid (whether by affiliate links or receiving ad revenue from posts etc.) it may be their uploading of content is being done in the course of trade, meaning that any display of a brand’s trade marks in a manner that damages the reputation of the mark could infringe that brand’s trade mark rights. However, taking enforcement action against de-influencers carries PR risks (with the de-influencer likely to pit themselves as an authentic David against a corporate Goliath) and each instance should be considered on its own merits. Brands can also seek to identify any legitimate criticisms levied by de-influencers and seek to address these concerns in their advertising and PR strategy.
Responses to any particular instance of de-influencing will always be fact specific, particularly when they involve any potential defamatory comments and/or use of a brand's IP, for advice on any of the issues identified in this article, contact Claire Sng and Alex Lowe of DLA Piper UK LLP.