Facebook (owner of Instagram in the UK) has committed to a package of changes to tackle what the Competition and Markets Authority describes as "hidden advertising" on the Instagram platform. 

This is intended to make it harder for people to post an advert or incentivised post on Instagram without clearly labelling it as such. 

Clear labelling of incentivised posts is required under consumer protection law and CAP Code so that people are not misled. But to date, the ASA and CMA haven't always seen eye to eye on the best way to do this, and various guidance over the years has not always been clear or practical.

The Competition and Markets Authority (CMA) has been investigating hidden advertising on Instagram over concerns that too many social media influencers are posting content about businesses without making it clear when they have been paid or incentivised to do so. The CMA was concerned that Instagram was not doing enough to tackle the problem.

Instagram will now make it easier for all influencers and users – and the businesses they promote – to comply with consumer protection law when posting content.

Under the new commitments, Instagram will:

  • Prompt users to confirm if they have been incentivised in any way to promote a product or service and, if so, require them to disclose this fact clearly.
  • Extend its ‘paid partnership’ tool to all users, enabling users to display a clear label at the top of a post.
  • Use technology and algorithms designed to spot when users might not have disclosed clearly that their post is an advert and report those users to the businesses being promoted.
  • Ensure its policies and guidelines are clear and easy to understand, including by influencers and users who are under 18.
  • Provide users with a clear explanation regarding: (a) what constitutes an incentivised post/endorsement (including a table of illustrative examples),  (b) the circumstances in which disclosure of an incentivised post is required, and (c) <u>how</u> to label an incentivised endorsement.
  • Amend its branded content policies to include a <u>requirement&nbsp;</u>that any incentivised post must be given a clear and prominent label on the face of the post <u>in a form and manner prescribed by Facebook</u>. (We assume the CMA will work with Facebook/Instagram to ensure such label is compliant with the CMA and ASA guidelines).

The above commitments have to be implemented as soon as practical, and in any event by the end of 2020.

Will the 'paid partnership' label be enough on its own?

The current 'paid partnership' tool is not adequate on its own. The CMA and ASA guidance for Influencers makes this clear. The CMA stated last year that "The CMA takes the view that ‘Advertisement Feature’ or ‘Advertisement Promotion’, are useful descriptions, but it has seen a range of other wording, (including #Ad, #Advert, and <u>using the ‘Paid Partnership’ tool on Instagram in addition to these hashtags</u>), which convey the appropriate messages simply and effectively."

Therefore, we have to assume that the CMA will work with Instagram to ensure the new tool will be adequate on its own OR that the CMA will work with Instagram to ensure the labelling information and examples Instagram provides to users will comply with the CMA and ASA's requirements.

I for one hope this will not prove to be a wasted opportunity to streamline the disclosure process. In particular, I hope that the paid partnership tool can be updated to avoid the need for additional disclosures within the body of the post.

Everyone wants to see absolute clarity in this area. We cannot have a situation in which the ASA subsequently decides it wants to set a different or higher bar than the one which we assume the CMA and Instagram are busy negotiating.

So, where does that leave influencers?

Well, until Instagram publishes further guidance, influencers will still need to include a disclosure such as "Ad" at the start of any incentivised post in order to ensure compliance AND they should use the 'paid partnership' tool.  They should also keep their eyes peeled for updated guidelines from Instagram in the coming days and weeks.

It is worth noting that Instagram is required (by 30 June 2021 at the latest), to develop and maintain additional functionality to allow prominent labelling of incentivised endorsements where <u>more than one</u> brand’s products are promoted within a single post. This is something the current tool does not allow. Influencers will be required to use this tool when this is made available. 

How are brands affected?

Instagram has also committed to involving businesses in the changes by creating a tool to help them monitor how their products are being promoted on the platform.

As a result, the CMA appears to expect businesses to play their part in ensuring that posts about their brand, products and services comply with consumer protection law and to take action where appropriate, including asking the platform to remove posts if necessary.

Today’s announcement applies to all users in the UK as well as anyone globally who directs their posts towards Instagram users in the UK. 

This action is part of a wider investigation into misleading online endorsements.

Imminent developments

By 30 June 2021 at the latest, we will see other changes being implemented under the medium-term commitments Instagram has provided to the CMA.

Some of the key developments can be summarised as follows. 

Instagram is required to:

  • Investigate the feasibility and effectiveness of developing a reporting tool to allow Users to report suspected inadequately labelled or unlabelled incentivised posts, and, if feasible and effective, to provide that tool to all users.
  • Take appropriate steps to notify brands which are users of the platform that their brand and/or products are being promoted by an influencer in a way which breaches or may breach these rules.
  • Implement technology designed to enable brands (which are Instagram users) to easily to detect incentivised posts which promote their brand and/or products
  • Develop technology and tools to encourage brands to take an active role in ensuring influencers comply with applicable rules when referencing their brand and/or products, and to enable such brands to monitor compliance.
  • Use their best efforts to educate brands who are not Instagram users how they can file notices with Facebook or influencers to request the prompt removal unauthorised or non-compliant incentivised posts.
  • React promptly to requests by brands for the removal of unauthorised or non-compliant posts.
  • Regularly report its progress against all commitments to the CMA.

CMA updates

The full text of Instagram's commitments can be found here.

We will report on all updates in this area. You can also find updates on the CMA’s work in this area at the CMA's Social Media Endorsements case page.