A recent Advertising Standards Authority (ASA) ruling on the adequacy of disclosures in relation to paid for social media posts raises an interesting question: is the brand responsible for ads it did not specifically request or pay for? What amounts to editorial control?
Victoria Magrath, who describes herself as “…a brand ambassador, content creator, fashion and beauty blogger, brand consultant, author, influencer and entrepreneur”, made four instagram posts from a St Tropez PR trip, each featuring a Jimmy Choo bag or shoes.
Jimmy Choo and Ms Magrath signed a Digital Content Agreement. Ms Magrath had attended their Saint-Tropez Trip as an ambassador under that agreement and they agreed that only one Instagram post was required. She chose a photo of her on a mini golf course photo captioned with “a d. On Mondays we play Mini Golf @Jimmychoo #jimmychoosummer”. Two other posts were not obviously identified as marketing eg with the addition of #ad. Given that these posts were not required by the brand owner, were they in fact marketing communications and therefore subject to the Code?
The ASA decided that the two posts should have been treated as marketing communications because: (a) there was an agreement between the influencer and Jimmy Choo at the time which called for a number of posts during the 12 months of the agreement; (b) as part of being contracted to act as an ambassador, Ms Magrath was required to wear Jimmy Choo products on social media where possible, (c) initially there had been an expectation from Jimmy Choo that additional organic content would be created on the trip and (d) the contract also included a term requiring Ms Magrath not to disparage Jimmy Choo to the media. The ASA therefore decided that Jimmy Choo had editorial control over the posts, and given that there was both payment and editorial control, the posts were marketing communications for the purposes of the Code, and should have been obviously identifiable as such.The ads breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
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