Brands face legal action in ASA influencer crackdown

The ad watchdog has warned brands which jump into bed with “high-risk” influencers they face legal action in a new crackdown on serial offenders who fail to disclose when a post is an advertisement.

The move coincides with the 2021 annual report revealing record total complaints last year.

The report, published by the Advertising Standards Authority and the Committees of Advertising Practice (CAP), shows online remained the most complained about channel, drawing 20,735 complaints, nearly half of the total but almost two-thirds of cases (14,558).

Complaints about online ads were up 19% on 2020 while case numbers remained at the same level as the previous year.

However, TV was not far behind on 20,425 complaints – a 44% rise on 2020 – helped in no small part by Tesco ‘s Christmas spot featuring Father Christmas showing his Covid passport, which accounted for more than 5,000 of that total. The ASA cleared the ad, however.

TV actually made up only a fifth of cases (4,802) and there was a 5% decrease in the number of TV ads complained about.

Elsewhere, there was an increase in complaints and cases about other online ads, including video on demand (138% increase in complaints and a 22% increase in cases); paid-for ads on websites, social media and apps (39% increase in complaints and a 14% increase in cases), and audio podcast or on demand (54% increase in complaints and a 9% increase in cases). Complaints about direct mail fell 49% to just 274.

A total of 20,456 ads were amended or withdrawn as a result of the ASA’s work.

Complaints about influencer posts (4,889) increased by 20% and made up almost a quarter of all cases (3,648), a 9% increase on 2020, a rise which has sparked the new AI programme.

The watchdog says the new project captures and analyses all Instagram Stories produced by high-risk influencers who are on its radar for being unwilling or unable to clearly and consistently label when their content is an ad.

Using machine learning algorithms to automatically identify potential ads in these posts, it is using image recognition and natural language processing techniques to categorise the images and videos influencers post. The watchdog also searches influencers’ content for possible ad labels giving it the ability to identify which are likely to be ads but are not disclosed as such, in breach of the rules.

The regulator says the technology is transforming it ability to act at pace and scale in identifying problems and taking action. It automates what was previously a manual and labour-intensive monitoring process, resulting in efficiency gains, and enables it to prioritise where to focus its attention – on influencers and advertisers causing most harm to consumers.

As part of the programme, the ASA is now monitoring dozens of high-risk influencers each week and has captured and analysed more than 80,000 Instagram Stories for potential non-compliance since the project started.

The ASA is also ramping up its monitoring of companies who partner with influencers and holding them to account. Repeat offenders who are unable or unwilling to follow the rules will face an escalation of sanctions and enforcement action.

As part of that, the watchdog is currently considering lining up the worst offenders for referral to statutory authorities for consideration of legal sanctions as well as working directly with the host platform to pull the plug on problem accounts.

ASA chief executive Guy Parker said: “Technology is transforming all our lives and as our Annual Report shows it’s also transforming how the ASA regulates misleading, harmful or irresponsible ads.

“As our world leading use of artificial intelligence to help tackle misleading influencer ads demonstrates, we’re harnessing and increasing our use of artificial intelligence and machine learning to deliver tech-assisted and proactive regulation. It means we’re better able to respond to concerns and ensures we continue to provide a one-stop-shop for advertising complaints for the public and responsible businesses across the UK.”

The ASA has already named and shamed a number of influencers, including former Geordie Shore stars Charlotte Crosby (pictured) and Scott Timlin and Love Island winner Amber Gill for repeatedly failing to flag ads on Instagram. They all appear on a public list of non-compliant social media influencers and are subject to a period of enhanced monitoring spot checks.