Not fit for purpose: Why I can’t get on board with the ASAI guidelines for influencers
I loathe when people are misled by non-disclosure, but I loathe hastily cobbled together rules *just* as much
The influencer marketing industry is, relatively speaking, new. In the last decade, we’ve gone from not having an influencer marketing industry at all, to it being one of the most important and valuable ways for brands to reach audiences, and influencing has morphed into a real, legitimate career, a career from which earnings can be significant and the work can be extensive and all-consuming.
But I’ll be honest – it feels a bit like the Wild West out there right now. It has gone from zero regulation to too much regulation, from #AD being rarely seen to being on (sometimes literally) every single Instagram story slide or in the caption of every second TikTok video.
Understandably, when an industry springs up out of nowhere, we scramble to get things in place. The ASAI (Advertising Standards Authority of Ireland) definitely did. But I feel like they scrambled so hard their eggs curdled while still on the hob.
I polled my followers on Instagram to see how they generally felt about the rules – the response was mixed. Some felt they’re fair – that people have a right to know when they are being marketed to. That part, I 100 percent agree with. Everyone deserves to know when paid marketing is at play. But I don’t necessarily agree that all the rules are ‘fair’.
Ostensibly aimed at protecting consumers, they strike me as ill-conceived and slightly patronising. They also, to my mind, place most of the onus on the individual influencer rather than on the brands that are funding the industry, which I think has mostly negative implications. I definitely think the rules underestimate the intelligence and capability of the average consumer.
The rules are, as one respondent put it: “Unclear, unresearched and unregulated”. I am absolutely in favour of people not being misled – it really irks me when I see someone not disclosing advertising content. Particularly when it’s blatant that money has changed hands or some under-the-table perks are offered up.
But the majority of influencers are honest. They are providing a service, a valuable one, to consumers and brands, and deserve to be able to make their living without the overly restrictive and sometimes ridiculous demands of an organisation that is just throwing things at the wall to see what sticks.
Should you wish to spend a chunk of time today feeling more than a little confused, you can read the full document from the ASAI here.
But for ease, here are my Cliffs Notes:
The 2023 guidance on influencer advertising and marketing, developed by the Competition and Consumer Protection Commission (CCPC) and the Advertising Standards Authority for Ireland (ASAI), aims to ensure that consumers can instantly recognise commercial content on social media.
It mandates that influencers must disclose any benefits they receive for promoting brands, which include monetary payments, gifts, commissions, discounts, and other incentives. Compliance with this guidance is, they say, crucial as non-compliance can lead to reputational damage, loss of followers, and legal consequences. Sure, Jan.
Influencers must adhere to consumer protection laws and the ASAI Code of Standards. This guidance applies to all social media influencers, content creators, bloggers, vloggers, celebrities, and media personalities, covering all social media platforms. Commercial content includes advertisements, brand mentions, reviews resulting from benefits, sponsorships, affiliate links, promotional content, and posts about personal or family-owned brands. Such content must be clearly labelled using primary labels like ‘#Ad’, or platform-provided labels.
Labels must be prominently placed, instantly visible, and in a contrasting colour and large font to ensure they are not obscured by platform features. Posts about gifted products must be labelled as ‘#gifted’ if there is no direct influence from the brand; otherwise, they must be labelled as ‘#Ad’. Similarly, affiliate marketing posts, where a commission is earned from sales through links, must be labelled as ‘#Ad’. Any content promoting personal brands must also be clearly labelled, reflecting any ownership or commercial interest.
So, those are the basics. There are some nuances, of course. The overarching principle seems to be: if in doubt, label it. Which, with respect, is complete nonsense.
The rules seem to me to be a panicked, blanket attempt to regulate an industry which requires more than just a ‘one size fits all’ approach. Who made the rules? I am picturing a room full of headless chickens, none of whom have worked in the influencer industry in any real way.
The guidelines give a lot of very clear information as to what they think people should be doing, but where they fail to be clear is in their definitions. Define commercial interest? Define commercial content? Define influencer?! How are the rules deemed to be clear when those key definitions are skirted around?
WHO MADE THE RULES?
I contacted the ASAI and asked who was involved in the guideline-making process – as of today they haven’t come back to me on that, but if they do I’ll update the piece.
**UPDATE** from ASAI representative today:
“The joint guidance has been developed following extensive research, including experiments with eye-tracking technology and a survey of 500 social media users. A number of influencers were also asked to review the new guidance and provide feedback to the CCPC.”
My feeling on it is that influencers/media were either not consulted at all, or they were and their input wasn’t included. It seems as though if a selection of influencers had been included or consulted on it, there would be more nuance and awareness of the myriad grey areas not provided for in the rules.
Influencers, in a lot of cases let’s be honest, are young women. When placed in a boardroom with a regulatory body and asked to give feedback, one can understand why their opinions mightn’t be respected, or even welcomed. That’s speculation, but if I was 25 and asked to debate an issue like this with a regulatory board of people twice my age, I don’t imagine I’d have come out swinging.
SPAGHETTI JUNCTION & HEADLESS CHICKENS
Anyway, back to the rules, and the apparent panic with which they were created.
I sometimes equate it, in my own head, to a busy junction.
The junction is crazy: A zillion lanes, cars flying everywhere, bad drivers causing near misses every once in a while, but overall it’s moving well. Someone – who, let’s be honest, can’t drive very well – complains to the local council. The council panics, scrambles, and two weeks later there’s eight different sets of traffic lights on the junction. Everyone is stopped, there’s more traffic, people are pissed off. The traffic lights vindicated the complainer, and sure, things are a bit easier to navigate, but people start avoiding that junction entirely because it’s now tough to get through. And no one is really better off.
The influencer industry seems to have undergone a similar fate. Things were a bit chaotic – no one knew what was going on, what to declare and what not to, and of course there were plenty of rogues out there taking money, cashing in and declaring nothing as an #AD. Everything was plodding along, and most people understood when they were being marketed to. But then, consumers who felt hoodwinked started complaining about, for the most part, bad actors in the influencer space who were out to deliberately confuse people. Or, indeed, busybodies who had nothing better to do than pick holes in the professional life of an otherwise obliging and cooperative influencer, who is just trying to do their job. I believe that most people with an influence online are trying to do their best. Some aren’t, absolutely, but most are.
WHAT DEFINES AN INFLUENCER?
That, to me, is the biggest issue. This is where the grey area starts to expand and becomes unruly. Here are some examples of why the rules don’t (and can’t) work.
Say for instance you have 100 followers, mostly family. And say for instance you work as a receptionist for a Toyota dealership. You also happen to drive a Toyota because you’ve always driven a Yaris, even before you worked there. You drive to the beach and post a picture of your car after you put it through the carwash, and only your 100 followers see it. But one of them thinks, gosh, I love the look of that car, I’ll go buy one. Based on the ASAI guidelines, you should’ve labelled that picture of your car as an #AD. Does that make any sense? No.
Or in an even weirder, further grey area: My situation. I am not an influencer, I have never ever taken ads or sponsorships or anything of the sort. I work in communications for a beauty brand and as part of my day to day life I post pictures of things I’m working on. Technically, I should be putting #AD on random pictures of me at my desk, because I’m an employee of the company. That makes zero sense to me. I’m not promoting products, I’m just living my life and taking my salary, which – to my mind – isn’t a payment for pushing the brand, but my literal job. Should I have to post #Ad every time I mention anything to do with Poco Beauty? If so, you’re about to see a WHOLE lotta AD AD AD AD AD from moi. (Lol, I won’t do that – come get me, ASAI).
And take this example, too. Someone I was speaking to recently had done some sponsored work earlier in the year with an airline. They told me that they were so impressed with the airline after working with them, that they decided to book with them for a holiday afterwards, paying in full and just being a regular customer with no paid affiliation. When they tagged the airline upon boarding, on their private paid-in-full holiday with their partner, someone pulled them up for not marking it as an ad.
“To be fair, they were actually technically correct. Because I did work for [the airline] within the past 12 months, I have to declare it as an ad. How does that make sense?” they said.
“If I want to organically and genuinely share something on my feed that has absolutely nothing to do with the paid collaboration, I still have to mark it as paid? I feel sorry for anyone who relies on this work for their living, especially with these new rules,” they told me.
Courtney Smith, who is a stylist and creative director working in Ireland, has gathered a following on Instagram, similarly to myself, through the course of her work. She has done some paid work with brands on her platform, but not a lot. She questioned the ‘line’ – what defines an influencer, and how come only some influencers fall foul of the complaints process?
“Sports stars think ‘I’m a paid sports star so I’m not an influencer’ so they think they can get away with it, but surely an influencer is someone who has influence over others regardless of their other jobs? There are way too many grey areas. Also, what defines an influencer? You could have 100 followers and still be influencing people within that, so where is the line drawn?”
POLICING THE UNPOLICEABLE
Enforcement is another issue. I don’t know of any influencer who has landed in prison for breach of consumer laws. The most ‘punishment’ I’ve seen thus far is their name landing in the complaints bulletin on the ASAI website – not a very scary thought for an influencer who, without shame, tried to deceive their followers, I’d imagine.
Here, for instance, is about 300 words from the ASAI on how complaints are investigated and dealt with. Come back to me if you can find the point here. Because for the life of me, I can’t. This is the definition of word salad.
But nonetheless, micro and nano influencers are now sometimes afraid to post anything without declaring it an ad, just in case. Which, I think you’ll agree, takes away from the online experience entirely.
Laura Young, known online as @Lauras_views, told me that the #AD concept has just become noise, both to consumers and to influencers.
“I've said this to numerous acquaintances in "the field" – we should just mark every single piece of content as an AD at this rate. It's lost all meaning,” she said.
“If I post a link where I make a tiny commission I have to mark it as an AD?! It's so stupid. If I was made the boss of the ASAI (perish the thought), I'd make it super simple. Mark as AD if money has changed hands, mark as COLLAB if it's an exchange of product for content, mark as AFFILIATE if commission is being earned,” she continued.
Kevin O’Brien, from the Competition and Consumer Protection Commission, said in this piece: “Our research found that consumers consistently overestimated their ability to identify influencer advertising.”
Okay, Kevin, go off. Consumers are stupid, seems to be the message here? As a consumer, I’m a little offended.
He continued: “This guidance will support influencers to comply with their obligations under the law so that consumers know when they are being advertised to. It is in everybody’s interest for influencers to be honest with their audience and transparent about their advertising.
“Clear labelling benefits everyone. It is an offence to mislead a consumer, and influencers who fail to comply with Ireland’s consumer protection legislation may be subject to enforcement action up to and including prosecution.”
It’s kind of ironic that the chat here is about support and clarity, when the ASAI document couldn’t be further from clear, with – like I mention above – very few necessary definitions included, and doesn’t seem to provide support in any form, rather trying to police the un-policeable.
Orla Twomey, Chief Executive at the Advertising Standards Authority for Ireland, said in the same piece: “Consumers shouldn’t have to question if and when they are being advertised to – it should be instantly clear. The guidance takes account of developments in influencer marketing and provides clear and straightforward guidance for influencers and brands they work with, on how to correctly and clearly label and disclose advertising content on their social media channels, to ensure that consumers are not misled.”
This view underestimates the growing media literacy among the public. Consumers are savvy AF. They can easily distinguish between organic content and advertisements for the most part – where else would the complaints emerge from, otherwise? The assumption that consumers are incapable of understanding or questioning advertising content is not only condescending but also inaccurate. Consumers are not passive recipients of advertising; they are active participants in it. They compare products, read reviews, seek value for money. By underestimating consumers' ability to navigate advertisements, the ASAI rules risk patronising the very people they aim to protect.
An influencer I spoke to who wished to remain anonymous said: "I always aim to be transparent with my followers, but the new rules make it so much harder to engage authentically outside of my paid content work. My followers trust me because I'm genuine, not because of regulations. I’m happy to put #ad when it’s necessary, but some of the other rules are a bit much.”
HOW THE CONSUMER FEELS IN 2024
The 2023 ASAI rules, while definitely well-intentioned (if a little bit panicky) reeeeally highlight the chasm that is the disconnect between regulatory bodies and the realities of modern consumer behaviour.
A survey was conducted as part of the ASAI’s “ongoing commitment to understand consumer issues and concerns regarding influencer marketing”. They make for interesting reading… Especially given the fact that influencing shows no sign of slowing down.
56% of Irish consumers trust brand advertisements more than social posts by influencers
51% of people in Ireland say they are concerned by the lack of transparency in influencer marketing
67% were familiar with the practice of influencer marketing, with awareness being highest (75%) amongst those age 35 and under
71% believe that when an influencer posts an ad, they are being paid by the brand to post positive content
10% of consumers have trust in influencers’ posts
62% believe that influencers post too much sponsored content
These stats are, to be fair, quite grim considering the size of the industry and its importance for brand marketing. I feel as though the ‘GAH! Let’s just tag evvvrrryyyyTHINGGGG’ approach, to quote the youth, is not The One.
Phew. If you’ve reached the end, throw me a comment PLEASE. This took bloody ages.
A.
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I have to say, respectfully, I disagree. Are there a circle of Irish influencers around a certain age who all seem to genuinely be trying their best to be transparent? Sure. But there’s a whole world of influencing outside of that where people are absolutely conning their followers. And not even intentionally, but I think people with any kind of ‘presence’ who, even occasionally, have access to free stuff, have totally forgotten that the average person in this country has major financial struggles that don’t *ever* include a package of free bits through the door, or a fancy press lunch from time to time. So they claim “oh I’ve worked with this brand previously but it’s not an ad, I just genuinely love this and I paid for it with my own money” but like, of course! I would also absolutely love a company who had previously given me freebies, or provided an excellent service (because they knew the service was for an ad) 😂 even the loveliest, most genuine influencers seem to have forgotten how priming and bias works.
This is so interesting! I work in compliance in financial services and when the Central Bank wants to bring out new guidance they publish a consultation paper which industry and other stakeholders can respond to. Not all concerns will be addressed or changed but there is a forum there for people to provide their views and it does lead to change. Something like that could have gone a long way here