We recently published a ruling upholding complaints against ads from TALA, an active wear company. Four TikToks were posted by Grace Beverley, who created the brand, and two Instagram reels were jointly published by both Beverley and TALA. None of these posts were obviously identifiable as ads; as such, we banned them and told TALA to make sure in future that they are upfront and clear when their posts are ads.
In some ways, this isn’t an unusual ruling – we’ve banned plenty of posts from influencers before where they haven’t been obviously identifiable as ads. And it’s not the first time we’ve banned ads from an influencer for their own brand. However, this was still a precedent-setting decision, as it was the first time we ruled on an Instagram feature that allows posts to be jointly published by both an influencer and a brand account.
We don’t regulate in a vacuum, and we’re aware that some commentators disagreed with our decision. Some felt that, because Grace Beverley is the creator of TALA and that the reels were jointly published with the brand, they didn’t need to be labelled as ads – it would be obvious to anyone who saw the posts that they had a commercial intent. However, it’s important for it to be obvious to people when they’re seeing an ad, and it’s our considered view, having taken into account the complaint and the response from the advertiser, amongst other factors, that it just wasn’t obvious in this case.
With the joint publishing feature on Instagram, two accounts can post the same content simultaneously. One benefit is that influencers and brands can seamlessly mix editorial and advertising into streamlined content for multiple audiences. But that blurring of the lines between editorial and advertising means that people won’t necessarily know at a glance that what they’re seeing is an ad. The onus isn’t on the public to work out whether social media content is advertising. That’s the responsibility of the influencer and the brand. We’ve found that the simplest, most effective way to signpost when a post is an ad is with a clear, prominent and upfront ‘#ad’ label, letting people know what they’re seeing right away.
We recognise that some influencers will put in their bios if they own a business or have specific commercial relationships with a company. This doesn’t mean they can post ads without labelling them. Bios aren’t always visible when people are looking at posts – if you’re scrolling through Instagram Explore or TikTok, for example, you’ll be served content algorithmically and without seeing the bio of the account it’s linked to. As such, you can’t assume people will see your bio which is why the content itself needs to be properly labelled.
Context is always important when we make our decisions. If an ad only appears on a brand’s account, it may well be acceptable to not have a label, as business social media profiles act almost solely as a way of reaching customers. But joint publishing muddies that clear distinction between editorial and advertising content, and needs to be properly disclosed as an ad.
Likewise, while it can help with identifiability when a brand name is clearly synonymous with an influencer, whether a brand name is recognisable enough can be difficult to judge and context will always be key. For example, we considered that Sophie Hinchliffe was widely known by her abbreviated name “Mrs Hinch”, and that the name was synonymous with the “Hinch” brand – and, therefore, judged that an Instagram Story which featured a notebook open at a page titled “My Hinch List”, and text stating “HINCHLIST” and “HINCH NOTEBOOKS”, was considered obviously identifiable without the need for any additional ‘ad’ label. However, the brand names “VIEVE” for Jamie Genevieve, “ByErim” for Erim Kaur and “Dawsylicious Tanning” for Charlotte Dawson were not found to be sufficiently synonymous to make content obviously identifiable on their own. As such, the content needed to be labelled as ads. The context wasn’t there for it to be immediately obvious that they were ads.
Some people have suggested we’re taking a heavier handed approach with influencer ads than other kinds of content. That isn’t the case: influencer ads are often embedded within a stream of editorial content – it’s not like, say, a television ad that sits between programmes, or a newspaper ad that’s clearly separated physically and stylistically from the editorial content. This ruling simply reiterates what we have longed established, that when an influencer posts an ad, it needs to be immediately clear and obvious to the person who sees/hears and interacts with it that they’re being advertised to. Importantly, and to allay some of the concerns expressed by commentators in and around this ruling, we aren’t saying that any content posted by an influencer is an ad or must be labelled as such. When there is editorial control from an advertiser or a clear commercial interest, including when someone owns a brand, and it’s not clear from context that we’re seeing an ad, that’s where we need to see proper disclosure.
When done right, influencer advertising is an effective, engaging way for brands to reach specific audiences and grow their business. But ultimately, not everyone is a social media expert, a content creator or an advertising professional – nor should they have to be to work out or understand when something is an ad. Most people on social media are scrolling through a vast amount of content, quickly moving from one post to the next, overconfident in their ability to easily decipher precisely what they are engaging with and perhaps affording more trust in what they see than may be deserved. That’s why it’s so important for ads to be properly labelled, so people know they’re being advertised to and can take a conscious decision about whether they want to find out more about what the influencer and brand wants to sell to them. Or, if they don’t, to keep scrolling.
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