Global trends to tighten regulation around influencers

Pressure is building to regulate influencers globally.

Changes in young people and children’s media habits especially are raising concerns in parents, advocates and regulators both here and abroad.

Because of social distancing norms and global lockdown regulations, children and young people have had to adjust to new ways of living and learning, resulting in a surge in the use of digital technologies.

But “Influencer culture” is not a new phenomenon. For centuries, people of influence such as actors, politicians or intellectuals have had the power to affect opinions, decisions and actions of others. In recent years, however, the emergence of social media platforms has democratised media access and rapidly increased the accessibility and reach of individuals.

According to Vuelio’s UK Influencer Survey 2020, the percentage of influencers with channels that provide income has risen from 34% in 2016 to 49% in 2020.

The fast pace of growth has exposed a number of gaps in how influencers are being regulated particularly around disclosure of advertising and protections for children.

Here is a closer look at some of the developments overseas and in Australia.

 

UK

The Advertising Standards Association (“ASA”) in the UK recently assessed over 24,208 stories on social media and found that 24% contained ads, and only 35% of those ads were labelled correctly.

In spite of the work already undertaken in the UK to help influencers stick to the rules, complaints to the ASA on this subject remain high: 2020 saw a 55% increase on 2019 in complaints received about influencers, from 1,979 to 3,144 individual complaints. 61% of those complaints in 2020 were about ad disclosure on Instagram.

A committee of the UK Parliament, The Digital, Culture, Media and Sports “the DCMS” Committee has conducted an Influencer Culture Inquiry  which has examined the power of influencers on social media and the absence of regulation on the promotion of products and services, aside from the existing policies of the individual platforms. The inquiry delivered its report and findings for consideration of the UK Parliament in May this year with five top recommendations, namely:

1. Conduct an industry review into the influencer ecosystem to address the institutional knowledge gap;
2. Develop a code of conduct to promote best practise for deals between influencers and brands or talent agencies;
3. Give the Advertising Standards Agency more powers to enforce their Code;
4. Mandatory advertising disclosure when targeting ads to children or an audience composed predominantly of children;
5. Address gaps in labour legislation that leaving child influencers vulnerable to exploitation.
   The recommendations are currently being considered by the UK Parliament.

 

France

France brought in legislation in 2020 regulating the commercial exploitation of children under sixteen on online platforms addressing issues around so-called “kidfluencers”.

The country has regulated the hours an under-16-year-old can work online and enshrined the “right to be forgotten”, meaning platforms must take down a child’s content if requested. The child’s earnings are also put into a bank account that they can only access after they turn 16.

The law targets those who spend significant amounts of time working online and whose work generates an income. Children influencers now require written authorisation from the French Administration prior to being engaged or being broadcast in any such work.

 

Spain

Spain recently announced proposed new legislation that would ban anyone in a position of influence, including influencers, TV presenters and sports stars, from marketing unhealthy food and drink to children.

Under the proposals, which was put out for public consultation in March, anyone in a position to influence children would be forbidden to market food or drink that is high in sugar, sodium, salt or fat.

“The ban would prohibit appearances in commercial communications by parents, educators, teachers, children’s TV professionals, sportspeople, artists, influencers, and people or characters – be they real or fictional – who may, by dint of their careers, be likely to represent a model or example for these minors,” Spain’s consumer affairs ministry said in its draft decree.

The ministry described an influencer as “a person with a high level of influence over children and young people because of their large number of followers on social or digital media, and who interacts through messages on networks, blogs, posts, videos or similar media”.

 

Norway

Norway has brought in new legislation that mandates that content creators disclose when they’ve retouched or added a filter to a photo to combat body image issues in children and young people.

Any photo where “a body’s shape, size or skin has been changed by retouching or other manipulation” must be marked as edited, the legislation declares.

In addition to advertisers, the law also stipulates that celebrities and social media influencers must label altered images if they are paid or benefit in some way from the post. Breaches of the legislation can be issued with infringement fines.

Editing photos plays into “social insecurity, bad conscience, low self-esteem” and “contributes to body pressure,” the Norwegian Ministry of Children and Family said upon the passing of the new legislation which aims to put particular emphasis on how women are portrayed in society and how it contributes to insecurities. The Minister hopes the “measure will hopefully make a useful and significant contribution to curbing the negative impact that such advertising has, especially on children and young people.”

 

Australia

Influencers and social media platforms are coming under increasing scrutiny in Australia too with the ACCC launching an inquiry into social media services as part of the longstanding Ad Tech Inquiry.

The social media services inquiry, which will close 9 September, will look into competition issues; the role of advertising services, including display advertising and influencer advertising, offered by social media platforms on competition for social media services as well as the use and abuse of social media services for scams and misleading or deceptive content.

AANA is reaching out to members for feedback and preparing a submission to the inquiry. ACCC will publish their findings from the inquiry sometime after March next year. Watch this space.

AANA evolved the disclosure standards for advertisers and influencers in the recent review of the Code of Ethics which now includes extensive guidance on minimum disclosure requirements on social media. Additionally, the industry body Australian Influencer Marketing Council, or AIMCO, is focused on bringing best practice principles to the influencer industry with a raft of resources and a best practice Code. Reflecting the trend seen overseas, Ad Standards has received increasing numbers of complaints about the lack of disclosure by influencers leading to over 30 cases being considered by the Community Panel so far this year.