31st January 2019 at 15:39

Implications of new influencer guidelines on paid links

TLDR: buying links may now be breaking the law, not just against Google’s guidelines.

Last week the Competition and Markets Authority (CMA) released an update to their Influencer guidelines following an investigation into whether celebrities are disclosing paid partnerships clearly enough.

This caused much furore in the world of influencers with many thinking the guidelines go too far and ruin their witty caption efforts etc.

However, when looking closely at the guidelines these also apply to the world of SEO and PR as well. More specifically, they may mean that buying links is no longer just against Google’s guidelines as it always has been, but also be breaking the law.

There are two regulators and pieces of legislation at play here:

  1. The CMA (mentioned above) who enforces the Consumer Protection from Unfair Trading Regulations 2008 (CPRs)
  2. The Advertising Standards Authority (ASA) who enforces the The CAP Code (UK Code of Non-broadcast Advertising and Direct & Promotional Marketing)

I’ll break down what the guidelines now state for staying on the right side of the law and you can read the full guide here. But essentially if an influencer is caught posting anything deemed advertising without a compliant disclosure, it would be breaking one if not both pieces of legislation. However it’s not just the influencer who gets in trouble, the advertiser (brand) is also on the hook.

What counts as an ad?

Under the CAP Code:

  • Paid-for space e.g. banner ads
  • Own advertising
  • Affiliate marketing
  • Advertorials – there has to be payment and editorial control

Additional under consumer protection law:

  • Any form of payment or incentive even without editorial control

What counts as payment?

  • Monetary payment
  • Free product – ‘gifting’
  • Free services
  • Free trips/accommodation
  • Loans of products
  • Commission – this includes all affiliate links
  • Any incentive

For the CAP Code to apply remember there must also be editorial control by the advertiser (brand).

What counts as control?

Control could be:

  • Pre-approval of content
  • Specific use of hashtags
  • Key themes or messages to include
  • Also includes images or styles e.g. ‘unboxing’
  • Posting at certain times, dates or frequency

If there is no control it is treated as sponsorship and can not be enforced under the CAP Code or by the ASA. It is still covered under consumer protection legislation enforced by the CMA though.

So, if a brand is paying a blogger to include a link in a blog post this would count as an advertorial as payment has taken place therefore covered under CPRs. If the brand provides them with the anchor text or any other messaging – or explicitly requiring that the link be ‘followed’ (i.e., not have a nofollow attribute) – that would also be covered under the CAP Code.

The Guidelines – summary

The guidelines apply to all bloggers, vloggers, celebrities and social media personalities. Therefore it is not just social media influencers, but bloggers whom SEO’s may be paying for links or gifting products for links too.

Influencers must disclose if they have been incentivised in any way for an endorsement, review or featuring them. This must be clearly stated when a product, brand or service is tagged, linked or endorsed in any way.

This applies to any historic relationships with a brand too. The guidelines state this is within a ‘reasonable period’ which they suggest is one year. So basically if a blogger or influencer writes about you, links to you or features your product in a photo within one year of you incentivising them in any way, a disclosure must be featured prominently.

Influencers must also make clear whether they have personally used the product/service that they are promoting.

The main point from the guidelines is that the disclosures must be immediately apparent when a user views the post without the need to click or engage. So on Instagram or YouTube it can’t be in a ‘see more/view more’ part of a caption. In a blog post this would mean it must be at the top of the blog post not buried at the end of the post. This must also be checked across all devices i.e.. it can’t be visible on desktop but behind a see more link on mobile.

The examples of disclosure the CMA accepts are ‘Advertisement Feature’ or ‘Advertisement Promotion’.

Disclosures deemed non-compliant

The guide features a range of disclosures it deems non-compliant, examples most relevant to SEOs/PRs would be:

  • using discount codes in a post without additional disclosure
  • using ambiguous language without additional disclosure in a post (for example ‘thank you’; ‘made possible by’; ‘in collaboration with’; or ‘thanks to…’)
  • product placement where there is an associated (and undisclosed) payment or other incentive
  • disclosing the a commercial affiliation only on an influencer’s front, home or profile page

Implications for brands

You might be thinking that all the above guidelines apply to how influencers share their content so therefore it doesn’t affect the brand, but you’d be wrong.

I asked the CAP Copy Team (a team you can contact to check whether your advertising/content is compliant) what the implications for brands were and they said:

“Although it may be the case that despite clear instructions, an influencer may fail to adequately label or identify an ad, it is still ultimately the responsibility of the advertise to ensure the ads comply with the CAP Code. There is always an element of risk in giving away control of marketing but this is a commercial decision that each advertiser needs to make.

When it comes to an ASA investigation, it is likely that the ruling name both the advertiser and the influencer, the ruling is ultimately against the advertiser themselves.”

*disclaimer from the email which I feel I should also paste here:

Although it is given by the CAP Copy Advice team in good faith, this advice does not bind CAP or the ASA. Please note also that CAP has a regulatory role for many types of marketing communications. Our independence would be compromised if we were to endorse products or services and our advice should never be used for such purposes. You should be aware that, although it is designed to reflect the law, the Code does not cover marketers’ legal or other obligations, which remain their responsibility.

Sanctions

There are a range of sanctions that can be imposed upon brands should they be found to be in breach of the CAP Code. You can see the full sanctions here but the online ones that are most relevant are:

“In addition to the non-broadcast options listed above, CAP has further sanctions that can be invoked to help ensure marketers’ claims on their own websites, or in other non-paid-for space under their control, follow the Code.

We can ask internet search websites to remove a marketer’s paid-for search advertisements when those advertisements link to a page on the marketer’s website that contains material which breaks the rules.

Marketers may face adverse publicity if they cannot or will not amend problem marketing communications on their own websites or in other non-paid-for space online under their control.

Their name and details of the problem with their advertising may be featured on a dedicated section of the ASA website, designed to appear in search engine results when a consumer searches for a company’s website.

If necessary, we can also place an ASA advertisement appearing in search engine results.

On that final one it includes an example of what that looks like – essentially a Google Ad for your brand search informing searchers that you broke the law:

Brands that consistently break the advertising codes can also be referred to Trading Standards for further sanctions which can include:

  • Unlimited fines
  • Imprisonment up to two years
  • Confiscation of financial assets

Plus other softer sanctions, you can read about all of them here.

So in summary what does this mean? If you’re paying for links (or gifting products for links) and the blogger is not featuring a disclosure then you’re probably breaking at least one law and if you’re caught and persist you could face unlimited fines and criminal prosecution.

If you stick on the right side of the law and add the correct disclosures and the links are follow links then you’re then going against Google guidelines and could face some kind of devaluation from them.

I’m not saying never pay a blogger/influencer or give them a free product in return for promotion as that is perfectly legal. But, if you do then make sure you audit all posts to ensure they have proper disclosures so you don’t put your brand at risk.

Moral of the story? Just don’t buy links for SEO purposes.

To be clear this blog post is not intended to serve as legal advice, simply a view on what the guidelines and legislation mean for the industry. Obviously read all the links yourselves and make your own conclusions.

Final note, the above legislation applies to the UK however I haven’t looked into how that’s enforced yet i.e. whether the influencer has to be based in the UK or the brand or both. More research required but worth noting.