The 2019 series of ITV’s Love Island came to an end on Monday and the contestants were released back into the world of social media, where they can expect to earn potentially astronomical amounts of money as ‘influencers’ by promoting brands, products and services through their social media accounts.

To help the Islanders navigate the regulatory dos and don’ts of online advertising, ITV in partnership with the Advertising Standards Authority (ASA) recently published this Cheat Sheet to Declaring Ads on Social Media, which provides a useful and accessible summary of ASA rules for anyone planning on using social media for commercial advertising. It’s a timely reminder of the key points to be aware of when advertising on social media.

What rules apply to advertising on social media?

A number of different regulations apply to advertising on social media, although the key rules which apply are the ASA’s CAP Code rules and consumer protection legislation, such as the Consumer Protection Act 2015, which is regulated by the Competition and Markets Authority (CMA). These rules apply to anyone who places an advert on social media.

Additional rules also apply if you are promoting age-restricted products (such as gambling or alcohol), food or health supplements, or running giveaways or prize draws

What is an advert?

In the context of social media, an ‘advert’ can include any of the following:

• Paid-for space, such as a sponsored post in a live feed.
• Own advertising, where you post about your own products or services.
• Affiliate marketing, where your post promotes particular products or services and contains a hyperlink or discount code which means you get paid for every click-through or sale that can be tracked back to your post.
• Advertorials, where your post promotes particular services and you were both paid (in any way, whether money, gifts or otherwise) and the brand had some sort of editorial control over the content of your post (which could include requiring you to use certain words or phrases, do a particular thing in your post, post a certain number of times or at particular times of the day, or where the brand has to provide final approval before you post content about that product).

What does the CAP Code require?

The CAP Code states that adverts on social media must be “obviously identifiable” as such. This means that consumers should be able to recognise that something is an advert without having to click on it or otherwise interact with it. To comply with this rule, ASA advice suggests that:

• You clearly state in the post that it includes an advert, by using words such as ‘ad’, ‘advert’, ‘advertising’ or ‘advertisement’.
• You avoid words which do not clearly indicate that the post includes an advert, such as ‘sponsored’, ‘in association with’ and ‘thanks to [brand] for making this possible’.
• You put the statement that this post includes an advert at the beginning of the post and in a position obvious to the reader, rather than burying it in text or putting it somewhere where the consumer will have to click to ‘see more’.

What does consumer protection legislation require?

Consumer protection legislation requires that adverts placed on social media do not contain false or misleading information. This does not stop you from expressing an opinion – e.g. ‘this is the best makeup I have ever used’ – but it does stop you from expressing a fact unless you can back it up – e.g. if you say ‘this makeup is produced in the UK’ and it was actually produced in Spain, you could be in breach of consumer protection law.

What happens if someone breaches these rules?

If someone places an advert on social media which breaches the CAP Code rules, the consumer can complain to the ASA. The ASA will investigate and, if the advertiser is found guilty, the ASA can apply a number of sanctions, including requiring that the advert be withdrawn, that the advertiser be banned from placing adverts on social media, or that their adverts be vetted before they are placed online.

If someone breaches consumer protection legislation, they could expect to be sued by the consumer or investigated by the CMA, which can lead to sanctions including significant fines.

For further information, please contact Jennifer Agate at [email protected] or +44 20 7263 0011.

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