UK Advertising Regulator makes first ever ruling on disclosures required for commercial marketing via a TikTok video

A TikTok post on an Emily Canham’s account, a beauty blogger and YouTube star, is the first TikTok video found to be in breach of the Advertising Standards Authority’s (ASA) requirement for disclosure in the UK (see here).

The post, which featured a video of Emily Canham using a branded hairdryer and straighteners, included a caption alongside the video stated “hiii just a lil psa there’s 20% off the [Brand] website TODAY ONLY with the code EMILY … #fyp #foryourpage“.

The brand in question had entered into an agreement with Ms Canham, which required Ms Canham to post a number of social media posts while at a music festival. The music festival was cancelled as a result of COVID-19. However, the contract was varied and still required several social media posts featuring a certain promotional code.

It was submitted to the ASA that the TikTok was created without the oversight or approval of the brand, and did not form part of Ms Canham’s contract. Additionally, both Ms Canham and the brand pointed to the fact that she had not been compensated for the promotional code featured in the TikTok video.

In the UK, all marketing communications must be obviously identifiable, and they must make their commercial intent clear if it not obvious from the context. Despite the lack of payment to Ms Canham or the lack of oversight and control from the brand, the ASA still found that the post had commercial intent, and that, as it appeared in-feed on TikTok, it would not clear to viewers that is was an advert.

Ms Canham has since deleted the video, and she and the brand have been instructed by the ASA to ensure her future posts feature an advertising identifier clearly and prominently. Although this in itself is a soft penalty for a breach of the CAP Code, the negative media attention that the ruling has garnered shows the true penalty for a breach of advertising rules.

The ruling is not an unexpected development as the ASA has upheld other complaints made against social media influencers who do not make their connection with brands clear. An ASA spokesman has stated that

Our rules place an emphasis on protecting children and, where an audience/followers of an influencer or celebrity are predominantly young people, particular care has to be taken to ensure they are not misled“.

This clearly shows the ASA’s focus on social media as a platform to advertise to young people, and their concern with social media generally.

It is not just the ASA whose attention is focused on social media. The Competition and Markets Authority (CMA) has investigated hidden advertising on Instagram and found concerns that social media influencers are not making paid-for (or incentivized) content clear to viewers. As a result of the investigation, Instagram has signed up to a package of changes to help ensure clear labelling of paid-for content. It may be that other social media platforms will be required to do the same.

The ruling acts as a clear reminder to brands and social media influencers that advertising rules and regulations apply across all online activities and on social media, including newer and emerging platforms like TikTok. All posts and content, whether paid for or not, when made by a brand ambassador must be clearly identifiable as an advert. Brands should ensure that their influencers are fully compliant with the rules as they can be held responsible for content even where that content has been posted outside their immediate control.

By Arthur Artinian and Georgina Rigg

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