By André J Marè, executive in the intellectual property (“IP”) department of ENSafrica.
… of advertising rules and regulations, that is!
We have written a few articles about the new advertising regulatory landscape in South Africa, particularly around the fact that the Advertising Regulatory Board (“ARB”) has replaced the old Advertising Standards Authority (“ASA”). The ARB rulings that we have reported on appear to indicate that the advertising regulatory regime is similar to what it was under the ASA. This is good news as consistency breeds certainty for both advertisers and consumers.
In this article, we look at a newish issue that we have only skimmed in previous articles – influencers. An influencer is broadly defined as “…a person with the ability to influence potential buyers of a product or service by promoting or recommending the items on social media…”. In short, brand owners pay influencers to make flattering statements about their products on social media. Social media endorsement is an issue that is closely linked to the wider issue of celebrity endorsement of brands, which is a significant business.
The issue has become topical following an ARB case involving Volvo.
In the Volvo matter, a complainant objected to an Instagram post by a certain Kandy Kane (@kandykanemakeup) who has around 23 000 followers on Instagram, and around 14 000 subscribers to her YouTube channel.
The complaint was essentially that Kandy Kane had said nice things in her post about the Volvo she was driving, but she hadn’t really explained her relationship with the company. Certainly, the post had not been identified as advertising. In their response, Volvo said that the relationship between themselves and Kandy Kane was “not one of financial investment” but rather a “trade exchange”. Effectively, Volvo gave her a car to drive and in return she had to tell her followers about the experience. In order to resolve the matter, Volvo promised to ensure that the relationship between themselves and Kandy Kane was clarified in future posts.
What this complaint has done is shine a spotlight on certain provisions of the ARB Code that many may be unaware of. These provisions can be found in Appendix K to the ARB Code of Conduct. Clause 3 of Appendix K is headed “Declaration of Advertising” and it kicks off in general terms: “To ensure full transparency advertisers are required to disclose if content is part of a Social Media Advertising campaign as opposed to purely Organic Social Media.”
But, there are limitations. There’s recognition of the fact that many of us are social media-savvy. So, for example, clause 3.2 says that in the case of “promoted” tweets on Twitter or “sponsored” posts on Facebook, it will be obvious to people that this is advertising, and the promoter and influencer will therefore not need to say anything about this.
The provision goes on to say, “However, where Paid Advertising may reasonably appear to the consumer to be the unsolicited opinion of the influencer or platform, then the material must be clearly identified as Paid Advertising through the use of supported Social Media identifiers”.
So, just what are supported social media identifiers? Clause 3.2 provides the answer: “Recognised Social Media identifiers include… ‘#AD’ … ‘#Advertisement’ …’#Sponsored’”.
So, what about this “trade exchange” thing mentioned by Volvo? Well, for that you need to go to clause 4 of Appendix K. This clause is headed “Declaration of Goods Exchanges”. It provides as follows: “To ensure full transparency publishers and influencers are required to disclose if they were provided (permanently or on loan) with goods or services in return for media coverage (whether this is expressly stated or not). …influencers are expected to disclose their relationship whether it is money or goods that has been exchanged.”
So, have we gone mad here in South Africa, all nanny-state? Not really, we’re simply following international trends. The issue of social media influencing came up recently in the UK, in a case involving a “mummy blogger” by the name of Sarah Willox Knott. The blogger had breached the advertising rules by promoting on Instagram an over-the-counter Sanofi sedative. Knott had seemingly gone for the “But I’m no celebrity, these rules surely only apply to the likes of David Beckham (55-million followers)” defence. That failed. The advertising authority found that in the UK anyone with more than 30 000 social media followers is automatically considered a “celebrity”, and therefore someone who is subject to advertising rules. The ruling has surprised many UK users of social media, who were happy to learn that someone considered them to be celebrities.
A following of 30 000 may sound huge to us here in celebrity-lite South Africa, but it’s interesting to look at random Twitter numbers for a few South African celebrities: AB de Villiers has 6.6-million followers, Julius Malema has 2.4-million, Bonang Matheba has 3.4-million and Minnie Dlamini Jones has 3.2-million.
South Africans who may be surprised to learn that they are celebrities (at least under a UK definition) include Prof Tim Noakes (130 000 followers) and Toks van Der Linde (53 000 followers) For context, the top international Twitter account belongs to Katy Perry, with 107-million followers, and the top Instagrammer is Christiano Renaldo, with around 200-million followers.
Brand owners who make use of social media influencer campaigns are advised to take note of the ARB Regulations when designing their campaigns. Influencers themselves will also need to take note of wider advertising regulations, for instance, around prescription medication under the Medicines and Related Substances Act, as the penalties for contravening these regulations may be more serious than by the ARB. In certain instances, there may even be criminal liability.
André J Maré
executive | intellectual property (IP)
André J Marè is an executive in the intellectual property (“IP”) department of ENSafrica.
He specialises in intellectual property aspects of the pharmaceutical industry, general commercial and transactional intellectual property matters, and trademark prosecution.