Working with social media influencers is a powerful way for brands to reach consumers and gain their trust. But like traditional advertising, social media marketing must comply with the provisions of the Australian Consumer Law and must not mislead or deceive consumers. In particular, influencers must disclose when content is sponsored or where they have been otherwise engaged by a brand to promote their goods or services.
Both the brand and the influencer can be liable for online content that doesn’t meet these requirements. Apart from the significant penalties a breach of the Australian Consumer Law attracts, a brand’s reputation can be seriously damaged if they are seen to have somehow exploited consumers’ trust.
This article provides a practical compliance checklist for brands to consider when working with influencers to produce sponsored content.
(A) Have a compliance framework
It is a good idea to put in place a compliance framework for your business. A compliance framework provides guidelines on communication processes, risk controls, and practices a business should follow to maintain legislative and industry compliance.
Your compliance framework, among other things, should include how your business will achieve advertising compliance. For example, consider including tools and strategies outlined below at (B) – (G) to help your business comply with the Australian Consumer Law, the AANA Code of Ethics (Code), AIMCO Code of Practice when working with influencers.
Please note that there may be other relevant industry codes that apply to your business, depending on the industry you are in.
(B) Conduct a vetting assessment
One of the strategies to help achieve advertising compliance is to have a vetting assessment when it comes to working with influencers.
If you have not already done so, investigate and evaluate, in the initial vetting process, how an influencer normally uses hashtags on their media channels. This can help you assess the suitability of the influencer for your brand.
For example, if an influencer generally does not include appropriate hashtags, such as #Ad or #Sponsored on commercial content, you may want to be cautious before engaging them.
(C) Have contractual provisions in place surrounding your brand advertising requirements
Make sure you have a comprehensive and clear contract in place with all of the influencers you engage. The contract should set out your brand’s advertising requirements and how the influencer can comply with these requirements.
Specify in the contract if you require influencers to use specific disclaimers or disclosure hashtags when posting commercial content and clarify what content and claims should be avoided. For example, if you are a skin care cosmetic brand, you’d want to make sure the influencer doesn’t make any claims that the product has medical benefits. Also clarify if you have specific requirements to different social media platforms.
Your contract with the influencer should also outline when the influencer must make changes to any posts concerning your business. For example, if an influencer did not follow your brand advertising requirements and your business risks being non-compliant, you should have the right to insist on the removal of the content.
(D) Set out your business’ expectations on comment moderation
Anyone can leave comments or respond to comments on the influencer’s post regarding your brand. Sometimes, these comments may be misleading or deceptive. Having comment moderation as an advertising compliance tool is important so that these comments can be removed within a short or reasonable timeframe.
Make it clear to the influencer who is responsible for comment moderation. If someone posts a misleading or deceptive comment on the influencer’s post concerning your brand, who is moderating the comment – is it your business or the influencer?
Consider having a set of FAQs on your website or social media platforms on how, when and why comments will be moderated. This will provide consumers a clear understanding of your business expectations on comment moderation, and that you are invested in protecting your brand’s reputation.
(E) Educate, train and guide your staff
Consider conducting workshops to educate your staff and partner influencers on compliance with the Australian Consumer Law and the Code. This is a long-term business strategy for branding and advertising compliance.
Consider having an internal policy to guide your staff on comment moderation so that staff know when comments should be edited or removed. For example, if a staff member sees a misleading or deceptive message posted by a third party or even by the influencer himself/herself, who should the staff member report this to?
(F) Monitor the influencer’s content
As a mitigation strategy, you should monitor the influencer’s posts. If for some reason, the influencer goes rogue and does not follow your brand advertising requirements (for example, not using the required hashtags or endorsements as agreed), promptly investigate and remediate any ‘breaches’ by the influencer. If these are repeated breaches as opposed to a one-off breach, you may wish to consider using another influencer in the next campaign, subject to any contractual agreement you have with the influencer.
(G) Review the business’ process of engaging influencers
If your business or organisation is large or uses influencers frequently, consider conducting periodic reviews on influencer engagements, preparing incident or breach reports (if any), and identifying gaps where advertising compliance can be improved.
For each advertising campaign or engagement with an influencer, it is a good idea to go through the exercise of actively identifying the risks of any non-compliant advertising content. By doing so, you can then:
- put in place business risk mitigation measures on how to avoid such non-compliance; and
- know what to do in the event of non-compliance.
Level Up Legal can help you and your business to come up with an Advertising Compliance Framework, Policy, and Process. Our lawyers are also skilled in reviewing advertising content. We can help you make sure that your advertising content and engagement with influencers complies with the Australian Consumer Law so that your business doesn’t fall foul of the ACCC.
Contact us today.