When is a social media post clearly an #ad?

By Emma Gorrie
Intellectual Property Media, Advertising & Marketing Patents & Trade Marks

Review your influencer disclosure policy 4 min read

Social media influencers are increasingly being held to account for failing to disclose advertising content – so businesses working with influencers also need to take note.

Samsung recently took on the Ad Standards community panel and was successful in having a complaint about an influencer post dismissed.

How does this affect you?

  • Australia's advertising self-regulation code requires advertising to be clearly distinguishable as such.
  • The individual use of a brand name, hashtags or product imagery will not be sufficient to distinguish material as advertising.
  • With the right combination of these elements, the commercial nature of a social media post may be sufficiently clear, obvious and upfront and expressed in a way that is easily understood.
  • The lowest risk approach is to require influencers to use well-recognised disclosures (eg #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion).

Who in your organisation needs to know about this?

Adequate influencer disclosure is a big issue for marketing teams in all kinds of companies, as well as anyone working with influencers.

What are the rules?

Under the Australian Association of National Advertisers Code of Ethics (the Code), advertising must be clearly distinguishable as such. The Code is not legally enforceable, but instead a feature of industry self-regulation. Complaints can be made to a complaint resolution body, Ad Standards, where complainants believe an ad is in breach of the Code. To assist advertisers and complainants, the Code is also accompanied by a Practice Note that must be applied by Ad Standards when making its determinations.

Ads are often masquerading as something else, like a news article or organic social media content. The Code and Practice Note do not prescribe exactly how an ad should be distinguished, but the Practice Note provides that an influencer's relationship with an advertiser must be clear, obvious and upfront to the audience and expressed in a way that is easily understood.

The post and complaint

The post the subject of the complaint made to Ad Standards appeared on Ms Nadia Fairfax's Instagram account. The post included two images of Ms Fairfax and two other women, all holding Samsung Galaxy Z Flip smartphones, captioned:

Z FLIP(ing) around FW with these two.... @galaxybysamsung

@_yanyanchan @sarahellen Hello!?

#WorkingWithSamsung #GalaxyZFlip

The post tagged the official Samsung Galaxy Instagram account, '@galaxybysamsung'.

The complaint made to Ad Standards was that the post was an ad which was not clearly distinguishable as such. The complaint was initially upheld, before Samsung sought independent review. The independent reviewer recommended that the initial decision be reconsidered, and the determination on review was to dismiss the complaint.

Ad Standards' initial determination

In its initial determination, Ad Standards noted that the post included a link to Samsung's account and the 'workingwithsamsung' hashtag. A minority of the panel considered this to be sufficient disclosure, but a majority thought '#workingwithsamsung' could also be interpreted as completing work using a Samsung device. Tagging the brand and the use of hashtags referring to the brand and product was not enough.

Independent review

Samsung sought independent review on the grounds that there was a substantial flaw in the initial determination. Samsung's arguments included that:

  • the panel had adopted a strained and theoretical interpretation of the plain words 'working with Samsung'; and
  • the determination did not consider the overall context of the post.

The independent reviewer took a more holistic approach, taking into account the multiple references to Samsung and the Galaxy Z Flip phone, the language used in the post, the clearly commercial nature of the post and the visuals or theme of the post, in particular the prominent, artificial focus on the phones. The independent reviewer found that there was a substantial flaw in the initial determination and that the case should be reconsidered.

Determination on review

On review, the community panel noted that the clear focus of the post was on promoting the new Samsung phone – it was mentioned by name in the caption and in a hashtag and in both images the women were shown holding and looking at their phones. The post was clearly commercial in nature. The theme, visuals and language highlighted the focus on Samsung and the promotion of the phone. The panel also cited that 'Samsung' was used three times in the post, and the Z Flip phone was mentioned twice. The repeated use of brand and product names gave a sufficient indication that the post was commercial in nature. The panel found the post was clearly distinguishable as advertising and did not breach the Code. There is a lot more to the decision, which you can read in full here.

The final determination will be welcome news to advertisers, as it confirms that specific distinguishing labels are not necessarily required (think #ad, #sponsored, etc). Ad Standards considered the nature of the content as a whole, including the theme, visuals and language. That said, using labelling that is abundantly clear is always going to be the prudent approach, ideally to avoid complaints to Ad Standards in the first place.

Actions you can take now

  • Make sure any influencer policies reflect the prevailing disclosure requirements.
  • Check your standard form influencer agreements to ensure disclosure requirements are built in.
  • Let us know if we can assist with reviewing your influencer policies and agreements.