Name and Shame On Instagram – The ASA’s New Tactic For Non-Compliant Influencers

In June 2021, the UK’s Advertising Standards Authority (ASA) began naming and shaming certain influencers for “consistently failing to disclose ads on their Instagram accounts, despite repeated warnings and help and guidance on sticking to the rules” on their website (see here).

The name and shame list was created as a result of the ASA Influencer Monitoring report, which found inconsistent ad disclosure by influencers on Instagram through Stories, posts and Reels, with the disclosure rules being followed only 35% of the time (see here). The influencers listed on the webpage are subject to enhanced monitoring and remain on there for a minimum of three months.

Currently, there are six people listed on the list (see here) with the most recent being added on the 18 January 2022. However, the ASA has now gone even further by publishing adverts on Instagram itself warning consumers of these non-compliant influencers.

The adverts state:

“[Name] has been sanctioned by the UK’s ad regulator for not declaring ads on this platform. Be aware that products and services recommended or featured by this influencer may have been paid for by those brands. Our non-compliant social media influencer page at asa.org.uk is regularly updated to inform consumers of those who break these rules.”

The taking out of these adverts show the ASA is escalating its sanctions against non-compliant influencers. If the non-compliance persists, the ASA could consider further sanctions, including working with social media platforms to remove content, or referring influencers to Trading Standards for prosecution, including possible fines.

This development shows just how seriously the ASA takes the disclosure of adverts on social media and is a sharp reminder to brands to ensure that their influencers are compliant. To ensure that all marketing communications are clear, brands and influencers should make sure to include #ad (or similar) in an upfront and prominent manner or to use a platform’s own disclosure tools.

By way of a reminder, when a brand gives an influencer a ‘payment’, which can be monetary payment or commission, a free product/service, or any other incentive, any content produced as a result becomes subject to consumer protection law enforced by the Competition and Markets Authority and the ASA.

By Simon Casinader and Georgina Rigg