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Influencer Regulation: a Wolf in Sheep’s Clothing?

Last month, the Digital, Culture, Media and Sport Committee published the Government’s response to its report on influencer culture, ‘Influencer Culture: Lights, Camera, Inaction?.’ The report was produced in light of the growing influencer culture and highlighted regulatory gaps in advertising regulation, child protection and online harassment.

Whilst a number of the recommendations have not been adopted, the Government did welcome there being an ‘Influencer Code of Conduct’ to ensure that influencers have a better understanding of their marketing and advertising obligations when being paid (or benefitting) to promote or endorse a product or service, in particular the need for advertising communications to be obviously identifiable (the Advertising Standards Agency’s 2021 Influencer Monitoring Report found that 64.9% of influencer posts were not sufficiently labelled as being ‘Ads’).

Our firm’s experience from acting in cases both for and against influencers, in libel and privacy claims, has brought to our attention the huge impact they can and do have on people’s lives. Technology advances and culture changes often raise the ‘new wine, old bottles’ conundrum. The Government is said to be committed making ‘the UK the safest place in the world to be online’ and is placing its efforts into the Online Safety Bill and so did not take-on a number of recommendations in the report, considering that they would be covered by this. It did, however, adopt the recommendation of a code and made specific reference to the existing Code of Conduct produced by the Incorporated Society of British Advertisers (IBSA) which may well be the starting point before industry bodies and stakeholders’ input is sought.

In relation to advertising, the rules are not contained in one piece of law. A lack of guidance or knowledge means that advertisements are often not sufficiently labelled by influencers which places them at risk. The introduction of a code could bring a more straightforward framework to the fore, which could be more easily understood and complied with. However, with that I anticipate we will see additional burdens being placed on platform providers together with tougher enforcement and punishment powers to function as a deterrent and to increase responsibility of one’s actions. There is an obvious concern that it will be used as a beating stick.

As always, watch this space and keep up to date. In terms of the industry, a new code may mean companies seeking advertisement through influencers and agents made require adherence to the code by including this within their contracts with the influencer to avoid any risk themselves being liable for non-compliance. Platform providers are also likely to update their terms of use in a similar fashion and agents will face a greater burden to ensure their influencer clients are aware of their obligations.

Incorporated in 2012, Manleys has developed a formidable reputation representing its clients in a host of online matters. Its clients include celebrities, sportspeople and influencers who rely upon their online reputations and work. Manleys recently represented a leading YouTube football influencer, the victim of highly defamatory statements which they were able to have immediately removed. For any queries including advertising requirements for influencers, contact Manleys at info@manleys.law or see the firm’s website, www.manleys.law

 

 

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