Influencers appear to have become the bane of the Bay as they ship themselves in from every part of the country (or world) to stand in the various iconic spots around the region and use the name ‘Byron’ to sell their various flavours of lifestyle and influences. The question being asked by many consumers is: Are these genuine products that the ‘influencer’ likes and believes in, or is it just more advertising?
As the market has grown, the global industry ‘ad spend’ on ‘influencer marketing’ has shot up from US$500m in 2015 to US$5–10 billion in 2020 according to mediakix. So too has the awareness of those being ‘influenced’ – that what is being peddled is just another form of advertising, often sold as an aspirational lifestyle.
Paid to display
‘A key issue is that it can be deceptive behaviour, because the influencer’s followers may not be aware they are getting paid to endorse these products,’ said Kirstie McClean, a lecturer in Marketing at Southern Cross University.
And this is the crux of the matter, because if you are being paid, receiving products as gifts, value in kind, or affiliate marketing agreements to promote a product or brand, this can be seen as a ‘commercial relationship’ and therefore comes under Australian Consumer Law (ACL).
‘Under ACL businesses cannot mislead or deceive consumers in their advertising or marketing. This applies to advertising or marketing using any medium, whether print, radio, TV, billboards, on social media sites, on websites etc.’ explained an Australian Competition & Consumer Commission (ACCC) spokesperson.
Looking for authenticity
‘The consumer preference nowadays is [for] much more authenticity in messaging, and that’s why the influencer market is interesting,’ says Ms McClean.
‘The fact is that they have this influence on their audience, and it is often an emotional connection that the followers or the “tribe” has with the influencer. The level of authenticity is often not transparent. That, for me, is the issue – it is deceptive because these followers trust the people they are following, and the fact that they are being paid to advertise a product may not be clear. That is where the ACCC are coming from – that the behaviour is deception.’
As a result of this changing landscape several industry bodies have begun clarifying the fact that social media influencers need to identify the fact that by putting a product forward, that is in fact advertising; otherwise they could be prosecuted by the ACCC for false and deceptive advertising.
Deceptive advertising
In February 2021 the Australian Association of National Advertisers (AANA) updated their Code of Ethics’ distinguishable advertising rule, section 2.7. There have now been three rulings by the Ad Standards Community Panel, the body that administers the national system of advertising self-regulation, since February, that influencers have breached the AANA Code. The breaches were by Bachelor winner Anna Heinrich (Runaway the Label), influencer Rozalia Russian (Tom Ford) and Magnum icecream spruiker, Nikki Phillips.
‘This [section 2.7] provides much clearer guidance to advertisers and influencers about the explicit positive obligations now in place,’ said Richard Bean, Ad Standards Executive Director.
‘The issue of distinguishable advertising is increasingly being raised in the media and wider community as a subject of community concern,’ said an Ad Standards Spokesperson.
‘This is reflected in complaints lodged with Ad Standards about distinguishable advertising, which increased to just over 45 per cent of total complaints received in 2020, up from 14 per cent of total complaints in 2019. Recent complaints have raised the lack of transparency as the key issue.’
‘There’s a lot of money in it. So people want to know genuinely if someone is getting paid [to promote a product or brand],’ said director of policy and regulatory affairs of the AANA, Megan McEwin.
‘Brands do have a lot of concerns about who they use in relation to influencers and that includes disclosure. Advertisers brands value the fun creative content that influencers can come up with to connect with a different demographic. Global brands expect influencers to be honest and not post inappropriate content around their brand.’
Responding to the need for influencer-specific advice and industry development the AiMCO (Australian Influencer Marketing Council) was set up in 2019 by the AMAA (Audited Media Association of Australia).
‘AiMCO was started based on industry requests for assistance with best practice for influencer marketing,’ Josanne Ryan, CEO of AMAA told The Echo.
‘Some issues concerned brand safety for government campaigns, and also a range of practices which were undermining the brand safety element of the channel for marketers. The professionals in this space knew they needed to set agreed and consistently applied best practice ie, self-regulation, to improve the professionalism.
‘Consumers are aware that people are paid for endorsements and naturally don’t want to be duped. We are starting to see Ad Standards are making rulings now based on consumer complaints,’ she said.
‘Influencers need to be aware of Australian Consumer Law, what it means, and their obligations to disclose paid posts. Whilst some may have the sense that this appears to be “selling out” it can only work in their favour as it ensures that they retain credibility with their audience – consumers don’t want to be misled and there is a growing awareness regarding the issue.’
Influencer? What do you need to do?
‘Advertising must be able to be clearly identified by the consumer. It is more easily identified in traditional advertising channels, but nonetheless the same rule applies to social media and influencer marketing. Marketers and influencers need to be aware of their obligations under the law. Fines from the ACCC can be heavy if they choose to act,’ said Ms Ryan.
Despite that February update, a recent HypeAuditor analysis of posts by Australian Instagram influencers that had brand mentions, between March and April, found a significant portion of Instagram influencers are still failing to disclose sponsored and partnership posts.
It found that from 2,548 posts with brand mentions, only 1,366 used #ad or #sponsored hashtags.
‘The recent updating of the AANA Code of Ethics has isolated the acceptable hashtags applicable to influencer marketing posts to be #ad or #advertising.
‘We encourage marketers and influencers to join AiMCO, to get involved on our working groups, assist us to deliver the sort of education and guidance that the fast growing influencer marketing channel needs,’ said Ms Ryan.
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