Sports Q&A - Are the new guidelines on influencer marketing relevant to Sport?

Are the new guidelines on influencer marketing relevant to sport?

In short, yes! CAP (The Committee of Advertising Practice) and the CMA (the Competition and Markets Authority) have recently jointly published "An Influencer's Guide to making clear that ads are ads". The guide doesn't change the rules but it’s a useful overview of what you need to think about when acting as an influencer - and that doesn't mean it's just relevant to athletes acting as brand ambassadors. It's important to remember that it must be clear that all advertising is advertising. Clubs and federations who provide editorial content on their social channels, online, in their newsletter and event/match programmes, also need to ensure that where they include advertising (including 'advertorial') that it is clear it is advertising.

What counts as advertising?

The guide reiterates that ads can appear in many forms: traditional ads in paid-for space; 'own advertising’ (i.e. where a business promotes its own goods or services via its own channels); affiliate marketing (i.e. where you're paid for directing traffic to a third party); and advertorial. However whatever the form of advertising, it needs to be clear it is an advert.

It is the rules around 'advertorial' that are most likely to be relevant for athletes acting as influencers, and for clubs or federations promoting brands. Slightly confusingly the CAP and CMA 'tests' for when their rules apply are slightly different: CAP (whose rules are set out in the CAP Code - the self-regulatory rules for non-broadcast ads, established by the advertising industry) require there to be both payment (of any form, including value in kind) and editorial control, before they consider content published by one person, but promoting another, to be an ad. So if an athlete is given something for free by a brand but there is no contractual relationship, no obligation to say anything about the product, and/or no right for the brand to approve the post etc, this will not normally fall within CAP's jurisdiction. However, the CMA, which enforces relevant consumer legislation such as the Consumer Protection from Unfair Trading Regulations 2008 (which prohibits the 'black listed' unfair practice of publishing editorial content in the media without making it clear that the trader paid for this) only requires payment, not editorial control.

How to comply?

CAP requires that an advert is “obviously identifiable” as an advert. Likewise the CMA will assess whether it is “clear” that the content has been paid for. This means you must make a case by case assessment and, looking at all the circumstances, decide if something additional is needed to make it clear that the communication is an advert. In many cases, especially where a club, federation or athlete is promoting its own products or services via its own channels this will be obvious. Similarly, when a business is a well-known sponsor of the club, it is likely to be obvious that the sponsor has paid for the promotional activity. However, there will be occasions when it is not so clear. In those cases, attaching the word “Ad” or “Advertising” to the content, eg though the use of “#ad” “Advertisement Feature” or similar, is the safest option. In all cases, however you can consider making other changes to the text or the manner in which the content is presented to seek to get it over the relevant threshold. However, it must be obvious ‘up front’ that the content is an advert – i.e. there should be no need to scroll down, play a video, click a drop-down, or read to the end to realise that it is an advert.

Examples

If you’re not sure when you might need to disclose if content is advertising, consider the examples below:

• An athlete posts positive messages and/or images about a brand on their social media channels. They do this pursuant to an obligation in an endorsement agreement.
• A club includes a feature about a sponsor in a match day programme.
• A federation posts a video on its YouTube channel about a training camp they’re running which prominently features and promotes the hotel they’re staying in. The federation agreed to do this in return for receiving a significant discount.
• A player receives free clothes in return for an obligation to post at least 2 Instagram posts of him in the clothes, using a slogan required by the clothing brand.

Each of the above examples are ads in the eyes of the regulators, and therefore to comply with the rules, it must be clear that they are ads. It will depend upon the overall context and impression that the content gives as to whether an average consumer would realise that it is in fact advertising. It may well be that an “Advertisement” disclosure is required to ensure that the nature of the relationship is clear.

The risks

We know that marketing teams don’t like using “#Ad” disclosures, and that many argue that very few people are doing this, so “why should I?”. A complaint to the Advertising Standards Authority for a breach of the CAP Code can lead to negative publicity, but beyond the costs of pulling the advert there is no financial exposure. In the past the CMA have also tended to resolve matters through obtaining undertakings, rather than pursuing criminal sanctions. So how big a risk is this really? Well in a world of fake news, it’s sensible to ask what your fans would expect of you. Generally people don’t like to be duped and ambassadors can lots credibility (and followers) if they are seen to be misleading their fans. Sponsor brands will also normally require their ambassadors to include specific disclosures or otherwise ensure they comply with law and codes of practice. As such there could also be contractual liability if the sponsor suffers loss as a result of you failing to include a relevant disclosure. At very least, it’s therefore worth thinking through the risks in each case.