The ASA vs Zoella and ASOS: Influencers, ad-law and an instagram post

The ASA recently came to a decision which showed that even the most experienced influencers can get ads wrong sometimes.  Zoe Sugg, better known as Zoella (and perhaps one of the “original” influencers), posted an instagram story featuring an image of herself wearing a floral maxi dress last summer and it was found to breach the CAP code. Importantly (and unsurprisingly) ASOS, which had no input into the post but benefitted financially, was held by the ASA to be jointly responsible for the breach but the decision goes further and even takes aim at the word “affiliate”.

The caption Zoella posted stated “Lots of you loving the dress I’m wearing in my newest photos!…it’s from @missselfridge Swipe up to shop… (Also popped it on my @liketoknowit profile if you’d rather shop straight from the app).” Additional text at the bottom right-hand side of the image, obscured by the direct message icon stated “*affiliate”. Swiping up on the story took users to a product page on the ASOS website. A challenge was brought questioning whether this ad was obviously identifiable as a marketing communication.

This case raises interesting issues regarding the prominence of disclosure for the word “affiliate” but the decision also reviews the word “affiliate” itself.  Although affiliate advertising may appear to obviously express the commercial relationship between influencer and business, it is not as clear cut.

The position of “affiliate” in the Instagram story

The CAP code states that disclosure labels must be placed so as to be clear and prominent.  The word affiliate in this post was placed so as to be obscured by the direct message icon.  Asos.com Ltd t/a ASOS accepted that the disclosure in the story was not sufficiently prominent because it was obscured by the platform’s on-screen graphics when viewed on a mobile.

The word “affiliate”

The CAP code requires that an ad is identified as such.  Usually this has been done using #ad.  In respect of this post, ASOS said that consumers would appreciate that there was an affiliate relationship in place between the brand and influencer on the basis of the inclusion of the word “affiliate”.

ASOS and Zoe Sugg Ltd both referred to a research report conducted for the ASA by Ipsos MORI on “Labelling of influencer advertising” which was published in September 2019.  They referred to examples of ad tests in which #advert #ad or the label “affiliate” were used.  43% of respondents recognised a post with #advert as an ad.  36% of respondents to a separate example recognised it as an ad when #ad was included.  Whereas 45% of respondents to an example ad on Twitter which included the label “affiliate” understood it to be an ad.

In response to this the ASA noted another example relating to the word “affiliate” from the study:

“Both ASOS and Zoe Sugg Ltd had pointed to various examples in the research which they believed supported the argument that “affiliate” was a sufficient label to communicate that content was an affiliate ad. However, only 38% of participants felt they would be able to confidently explain what the word “affiliate” meant when displayed on social media, which put it amongst the terms that participants were least confident explaining.”

Decision

The ASA clarified that because the instagram story was directly connected to the supply of goods provided by ASOS it was an ad for the purposes of the code and it held that ASOS was jointly responsible despite not having any input or control over the ad itself.  Being a direct beneficiary was sufficient to be jointly responsible for compliance with the CAP Code.

On the basis that “affiliate” was obscured, the ASA stated that it “did not consider it would be sufficiently clear to users that there was a commercial relationship between Zoe Sugg and ASOS and that the story was in fact an ad.”

On the point of the word “affiliate” itself the ASA stated:

We considered that the term “affiliate” was therefore unlikely to be sufficiently clear as a standalone label to ensure affiliate ads were obviously identifiable.

This may be a little harsh on Zoella and ASOS given the findings in the Ipsos MORI study but the ASA considered that the word “affiliate” used by itself in this case was not sufficiently clear to ensure that the ad was obviously identifiable to consumers. 

As a result the ASA concluded that the ad did not make clear its commercial intent and therefore the ad/post breached rules 2.1 and 2.3 (Recognition of marketing communications) of the CAP Code.

Key take aways

There are three key lessons to draw from this:  

First, influencers should remember to keep labels and hashtags sufficiently prominent so that it is clear whether a post is an ad or not. For an influencer with the reputation of Zoella this case will likely have no bearing on future contracts, but influencers who are still building their reputations with brands will want to avoid issues with ad law, particularly because of the joint liability issue.

Second, brands, when engaging influencers, should remember that they will be jointly liable for any breaches of the CAP code and will want to balance that risk against the issue of creative control.  In this case, having no creative input (which is common for influencer contracts) did not change the issue of joint liability.  It would be interesting to know whether the contract between ASOS and Zoe Sugg Ltd provided for a situation in which an ad breached the CAP code.

Third, both brands and influencers should reflect on whether the word “affiliate” is sufficient when using it by itself. It may be best practise to include #ad even for affiliate posts.

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