In case you missed it, the ASA, the UK’s advertising regulator, last month published a further updated version of the ‘Influencer’s guide’, which was first published in 2018 (see updated copy here). The guide is jointly produced by the ASA and CMA and is aimed at influencers who are creating either incentivised content and/or advertising. Whilst the types of influencers the guidance is aimed at, when it will be relevant (i.e. the breadth of ‘payment’ now including both incentives but also relationships) and techniques for labelling have been updated, #ad remains the most favoured approach from the regulators from a transparency perspective.

Influencers and women’s sport

During her break from the tennis court in 2021, Naomi Osaka used her social media platform and presence to connect with fans which allowed her to earn USD55 million off the court.

Indeed, the rise in the use of social media as a platform for women’s sport was evident last year when the Six Nations officially signed with TikTok to be their first ever title partner for the Women’s Six Nations. This increased the visibility of women’s rugby by amplifying iconic sporting moments and bringing excitement to a new diverse fan base with short, action-packed videos on the social media app. In 2022 there were more than 100 million video views on the Women’s Six Nations dedicated social media channel and 110,00 newly followers gained.

As such, with the rise in female athlete influencers and use of social media for women’s sport, caution should be given when creating incentivised posts, ads or when working with influencers who will promote brands or sporting events.

New guidance – more breath and clarity but largely the same approach to favoured labels

• Influencer type – In a time where the words, metaverse and generative AI form part of most conversations and with the rise of virtual influencers (see Elinor Cavil’s article here), it is unsurprising that the type of influencers has been updated. E.g. expanding “Influencer” to include “any human, animal or virtually produced persona that is active on any online social media platform. This is regardless of the labels given across the different platforms e.g. calling someone a blogger, streamer, celebrity or content creators will not avoid them being considered to be an “influencer” and falling within the rules.
• 'Payment’ keeps getting broader - As a quick reminder, clearly where there is both ‘payment’ and ‘control’ this is an ‘advert’ and the ASA has remit to take action under the CAP code. Where there is ‘payment’ but no control this still needs to comply with consumer protection rules and can be enforced by Trading Standards or the CMA. However, ‘payment’ is even broader under the new guidance covering any kind of incentive or relationship (see page 5 of the guide (internal numbering) which confirms that “any incentive, even if it’s not money, counts as a ‘payment” and “any kind of commercial relationship with a brand, this qualifies as ‘payment” as well.
• ‘Incentive’ e.g. 
  • Free or gifted products, services or shares
  • A free loan or rental of a product or service
  • Free trips/events/hospitality or even not totally free but where expenses are paid.
  • Exclusive discounts, commissions or other benefits
• ‘Relationship’ i.e. commercial or personal connections with anyone who is “directly connected to a brand e.g. an owner, employee, shareholder, director or anyone with a personal interest (e.g. family and friends). See here a related article by Claire Sng and Elinor Cavil about advertising Muff Liquor by an investor. Relationship examples also include:
  • Paid partnerships
  • Ambassadorships (including unpaid)
  • Affiliate relationships – i.e. content containing discount links or codes.
• Influencer-owned brands, press trips and free services – these must also be clearly marked. Whether promoting their own products or services on their own personal channels, they still need to disclose to the audience up front that it is an ad.
• The What and the How - the key requirement is that the label is obvious and #ad is still the favoured label from a regulatory perspective (or similar e.g. #advert / #advertising #advertisement / #advertisementFeature both for adverts but also incentivised content. As to the “how”, it needs to be at the beginning of a post “whatever people see first” i.e. clear, prominent, upfront and appropriate for the platform and format of the content. One label for a series of stories or multiple formats will not be good enough as echoed in multiple adjudications. The guidance provides clear visuals as examples which you can see here.
• The How not to – there is an expanded list of unacceptable hashtag disclosures; including what has always been on there such as examples, such as Sponsorship / Spon / Affiliate / Aff / In association with / In partnership with / Thanks to [brand] for making this possible / Made possible by / but also now some new ones e.gCollab PR / PRTrip / PRTreatment / PRHaul / PR Stay / iworkwith / brandambassador / myedit / mycollection.

It will be exciting to see what a second year of the Six Nations social media platform partnership tie up will bring for women’s sports with many of the female rugby players themselves getting involved in sponsored videos and online posts, but what is clear, is that those acting as or working with influencers, will need to consider this updated guidance.

For advice on any of the issues on influencer marketing noted here, contact the authors, Zoë Stainton and Claire Sng of DLA Piper UK LLP or any other members of our international advertising team.

See also DLA Piper’s a cross border influencer guide available here.