UK Law and Practice Contributed by: Huw Morris, Dominic Bray, Nick Swimer and Rebecca Coleman, Lee & Thompson LLP
5.4 Requirements for Use of Social Media Platforms Unlike some jurisdictions, there are no laws prohibit - ing access to any of the major social media platforms in the UK. However, social media platforms them - selves are subject to certain rules and requirements that aim to prevent the spreading of harmful speech and disinformation online and the abuse of market power by large online platforms, including obligations under the OSA. Advertisers must ensure that their use of social media platforms complies with the law and the CAP Code in the usual way and with the platforms’ own terms of use. 5.5 Influencer Campaigns and Online Reviews 5.5.1 Special Rules/Regulations on Influencer Campaigns Influencer/creator campaigns are subject to the same advertising rules and consumer protection laws as traditional media advertisements. Influencers are responsible for disclosing where there is a commer - cial relationship with the brand (ie, they have received payment or other incentive in return for promoting its products). Where the influencer/creator is employed by or owns (in full or in part) the brand being promot - ed, this must be clearly labelled so that consumers understand the nature of the relationship. ASA and CMA guidance recommends the use of “#ad”, but consider that tags such as “#spon”, “#sponsored”, “#gifted” and “#in association with” do not sufficiently indicate a commercial relationship. Labelling must be prominent and clearly visible to the consumer before engagement with content, not hidden in the content or at the end of a long list of hashtags. The ASA publish - es a “Non-Compliant Social Media Influencers” list to publicly shame influencers who repeatedly breach the rules, and the CMA has conducted investigations and required binding undertakings from repeat offenders. 5.5.2 Advertiser Liability for Influencer Content Both advertisers and influencers/creators may be lia - ble for content posted on the advertiser’s behalf. The ASA has made it clear that advertisers have a duty to monitor influencer/creator content to ensure compli -
opportunities and gifts … solicitations of donations etc”. This may include a brand’s own website, social channels, “affiliated” or “advertorial” posts published by influencers, and online review sites where content has been adopted by the brand. Rules on transpar - ency and disclosure are particularly important in social media advertising; advertisers must clearly indicate when a post is a “paid promotion” and where there is any kind of commercial relationship. Advertisers must also comply with the platform’s own terms of use. 5.2 Liability for Third-Party Content Advertisers will be responsible for third-party content appearing on their own channels where they have invited, adopted or promoted such content, or have moderated such content (eg, by filtering out negative feedback) other than for removing harmful or offen - sive content. This may also apply where the advertiser has interacted with or adopted content on third-party platforms (eg, online review sites). In that case, the advertiser must ensure that the content complies with the Codes and other relevant laws as if it were its own content. Where an advertiser uses third-party content without permission, the owner may take action against the advertiser for copyright or trade mark infringement and/or passing off. 5.3 Disclosure Requirements The CAP Code requires that any paid promotion or endorsement on social media must be clearly and prominently disclosed and must not mislead consum - ers. Appropriate labels are required even in space- constrained advertisements like those on X, TikTok or Instagram. Labels such as #ad must be positioned so that they are visible to consumers before they engage with the content. Where a brand is running a sales or prize promotion online or in social media, or making a pricing or other claim, the ASA will still require the disclosure of exclu - sions, restrictions or key terms that could influence a consumer’s engagement with or understanding of such promotion or claim, with a link to the full T&Cs.
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