Undercover Advertising

In the UK, we have some really tight restriction on what and how we are able to advertise. Ofcom has a Broadcasting Code. The Advertising Standards Authority has both Broadcast and Non-Broadcast Codes. Beyond these, there are EU wide codes, and industry codes.

But frankly, the internet still appears to be the wild west. Panorama aired a recent edition highlighting a number of the challenges. There wasn’t anything too surprising: Instagram “influencers” promoting gambling to an audience that is largely under the legal age for gambling; a popular DJ promoting alcohol to an audience that includes large numbers of people under the legal drinking age.

What the episode did show was that regulators are fighting a losing battle. If I’m based in a non-UK country but have a global following, where should the regulation sit? Different countries have different laws. Social media is global, but advertising regulation has been built on older geographic boundaries.

Recently the UK’s Competitions and Markets Authority got a formal commitment from 16 celebrities agreeing that they would make clear anything they post commercially. But this is a drop in the ocean. There are probably millions of people including “paid promotion” in their output.

I do question whether adding “#ad” amidst a deluge of other hashtags is enough.

Interestingly, the CMA itself says in a guide to influencers that it’s not. But has anyone told the influencers?

The ASA also has its own guide but these are both UK rules, and influencers are global. It still feels that nobody is truly making allowances for global advertising differences.

Consider broadcast TV. Within the EU, it’s illegal to sponsor the news or current affairs programming. So a service like CNN might have to operate slightly differently inside the EU compared to how in might in North America or Africa. And what can be legally advertised varies a lot too.

When I worked in commercial radio, I would be asked by our sales team to provide research that showed how few children listened to particular shows. Advertisers (and their agencies) had a duty not to do promotional activity in shows with significant child audiences if they were advertising alcohol. They behaved responsibly, and according to Ofcom rules about advertising alcohol brands. Yet that same company was featured in that Panorama sponsoring someone with lots of followers across all demographics to promote an alcohol brand.

Vox just published a really interesting piece about healthcare influencers. The US is one of the few places in the world where prescription drugs can be freely advertised. Most of the world does not allow this, relying instead on doctors to prescribe the correct drugs rather than getting patients to “ask their doctor” about a particular medication that they heard about while watching an episode of NCIS. Only advertising for drugs available in pharmacies without prescriptions is permitted in most of the world.

Now pushing medication in Instagram is troubling enough – not being able to provide details surrounding side effects or the fact that a particular drug may not be right for you. But even with appropriate labelling and explanations, such paid promotions are illegal in most countries. (I note that Instagram is said to be testing such geofencing capabilities, but they’ve yet to rollout such functionality to all users.)

But if there’s one thing that really annoys me, it’s the fact that there isn’t a consistent way of labelling posts that contain paid promotion. This is surely the easiest thing to fix?

To be clear, some platforms like YouTube do have that functionality – see the image at the top of this post. But users are inconsistent in how they label their videos. Some use these tools – others do, or don’t do, their own thing to alert viewers or followers to the presence of paid promotion or sponsorship.

It seems to me that there should be a requirement for all users to use a consistent way of clearly marking their posts as including paid promotion of any sort.

Some platforms like Instagram don’t seem to roll out these kinds of tools especially widely. Some users may have them, but most don’t. To be clear, even Instagram’s own advertising labelling leaves much to be desired – a small “Sponsored” label below the name of the company posting is about the only thing that alerts you to it being an ad. That and the fact that they’re nearly always videos. (NB. I turn on “Use Less Data” buried in Settings > Account > Mobile Data to minimise the number of pre-loaded videos I see in Instagram.)

Brands love the lack of clarity about whether or not there is paid promotion taking place, and this can result in the advertising working better. People who wouldn’t for a moment spend time on a shopping TV channel, will devour their favourite influencer’s latest sponsored post, even if it only exists to promote a brand. And we are much more able to zone out of advertising we see on posters or on television compared to hidden advertising within people we follow’s posts.

Summary

It feels to me that there are two critical issues that social networks need to solve, and frankly I’m amazed that regulators haven’t clamped down more on the social networks, because if either of these things happened in “old media” then there would be fines, sanctions or licences being pulled.

  1. Clarity of advertising – Is this an ad or isn’t it? Why isn’t every post taking some element of paid promotion clearly labelled as such? Why don’t the social networks make a requirement within their T&Cs that everyone uses a built-in tool to identify these posts as containing advertising? Why isn’t there a consistent approach to labelling posts or videos as advertising, the same way that we know when we’re watching a TV ad? #ad isn’t enough.
  2. Adhering to local regulations – Platforms need to work with influencers to make sure that their posts adhere to global advertising rules. If someone is posting an advert in a category that is illegal in a particular territory, then there needs to be functionality to restrict that posting geographically. Social networks as well as the influencers need to take responsibility for posts. There are many different rules in different territories and these are really hard to stay on top of. But tough. Laws are laws.

The platforms, of course, mostly put the onus for all of this on the users. If I include an advert in a post I make on Instagram (Ha – the idea!) then I don’t actually pay Instagram a share of that revenue. Instagram instead makes money from selling ads that surround my post. But I’m responsible for what I post, and it’s me that gets in trouble and not Instagram.

But that surely isn’t sustainable if users are constantly breaking the law using a platform, whether or not users are aware of rules or local laws.

I always go back to how good the likes of YouTube and Instagram are at keeping porn or nudity off their platforms. If they really want to do something, then they find a way to do it.