That’s a bit of a grand title isn’t it? This post isn’t going to cover every possible legal thing that could come up when working with sustainable brands. And I’m not going to talk about how you about how you can work start working with brands as there are plenty of people with far more wisdom on this than me.
What this post will do is give you a solid foundation in the legal stuff you need to be aware of so that you go into brand relationships with your eyes open. You can skip to a specific section by clicking on the links below but I encourage you to read the whole post:
Now I’m going to put a great big caveat right here. This post is not legal advice (you can read my full legal disclaimer here) but I’d like to think that I have a fair amount of credibility in this area from my professional experience.
Some influencer marketing basics
If you’d asked me even a few years ago whether I was interested in marketing I would have said no. Sure I help develop marketing material in my job and I pitch to clients but I wasn’t “in marketing”, especially not in that Mad Men marketing agency way.
Yet here in 2021 I find myself writing a post that has an awful lot to do with marketing. So what changed?
Social media.
Yep. Instagram is the biggest marketing tool out there. Even before the world completely changed as a result of the coronavirus pandemic, social media was one of the most powerful marketing tools brands have access to. It’s no surprise that the net worth of Facebook (which owns, among other platforms, Instagram and WhatsApp) is an estimated $280bn.
Selling is big business. Whether that’s massive multi-nationals or small sustainable start-ups, everyone is looking for a slice of the social media marketing pie.
So when the global pandemic hit, and we all found ourselves at home with limited real life connections to others it’s no surprise that most of us found ourselves connecting through social media. And all that time spent scrolling meant that platforms like Instagram had an even greater opportunity to serve us ad content. After all that’s what social media is really all about (but that would need a whole other blog post to sort through that particular hornets nest).
Why influencer marketing is so powerful
But even outside the paid ads that brands can purchase on Instagram, there’s a whole world of much more subtle marketing. Whereas in days gone by we might make recommend our latest favourite skincare product to a friend over coffee, in 2021 we’re more likely to be shooting a flat lay and extolling the virtues of said skincare product online.
And yet when we read that recommendation online it can feel just as powerful as if we had received it over a coffee in real life. Especially when we feel we are invested in the person giving the recommendation. The power of social media is that rather than one person being recommended a product and potentially making a purchase, suddenly the same recommendation can reach hundreds or even thousands of people – all increasing the likelihood of that recommendation becoming a sale.
When we make connections on social media platforms on Instagram we are increasing the likelihood that we will make purchases based on recommendations from our connections and vice versa. Instagram wants us to foster those deeper connections because in doing so we’re more likely to buy. Instagram have made no secret of the fact they believe the future of content on the platform is video content and features like Stories and Reels make it easier than ever for users to show their face and their personalities – both of which are more likely to lead to their followers feeling more invested in that person.
What this means is that an Instagram user doesn’t have a huge following and wield massive power when it comes to marketing. And brands have caught onto that.
Increasingly brands are not interested in the number of followers you have but in how invested those followers are. Because more investment = more likelihood your posts will be seen and most importantly, a greater chance that your recommendation will be acted upon.
You don’t need to be selling to be seen
It always surprises me the number of people who just fall into working with brands. When I asked on a Stories poll recently whether those who are working with brands see this as part of a wider strategy (whether as an additional income stream or as part of a personal brand) 84% of those who responded said it wasn’t.
That also makes sense given that brands are increasingly approaching Instagram users with smaller but engaged followings to work with. Many Instagram users don’t set out to work with brands but when given the opportunity to be given a free item few will say no.
But ultimately we are simply becoming a cog in the marketing machine? Because I’ll let you into a secret, just because Instagram is a marketing platform doesn’t mean we all need to be selling stuff.
I recently made the analogy between visiting your Instagram profile and stepping into your house. If I walked into your living room I wouldn’t expect to be greeted by billboards and advertising hoardings. Yet we’re all more than willing to give up prime space on our Instagram profile to brands, often with very little in return.
Ask yourself: do I want to be selling this?
To misquote the ever relevant Ben Parker, with great social media influence comes great responsibility.
At the core of sustainability is a need to consumer less. And try as we might to buy our way into sustainability, buying more is never the solution. So every time you make a recommendation for a product, even if it is a sustainable product you have a responsibility to present that in a mindful way. If you know that your followers are likely to act upon your recommendations then you can be much more intentional about choosing how and when to make those recommendations. After all, context is everything.
Ask yourself, why do I want to be selling this product and would I want my friends and family to be buying this product?
That’s not just the question around whether you think it’s a good product but also whether people should really be buying more stuff. Most of us don’t need more stuff. We don’t need new stuff. We already have plenty and sure we want to help sustainable brands but do we have to do that through free marketing for them?
The legal stuff
OK so enough with the lecture, let’s get to the good stuff. Yep, legal stuff is always exciting (well at least it is to lawyers, but you really do need to know this stuff so at least try to get excited about it).
There’s a lot of different legal aspects to social media marketing but I’m going to cover the basics below:
- Why you need to declare ads
- Copyright and licensing
- GDPR
Why do I need to declare ads?
You may have noticed over the last few years an increase in the number of posts labelled as ads on Instagram. This is in part due to the increased awareness of the need to label ads following an investigation by the Competition and Markets Authority (CMA). In January 2019 the CMA obtained formal commitments from 16 celebrities and influencers requiring them to clearly state when they were giving paid endorsements for products.
Alongside the commitments from these well-known influencers the CMA also published guidance on how social media influencers can comply with consumer protection law.
Consumer protection law is actually an umbrella term for a whole set out laws that seek to ensure that individuals are not taken advantage of when dealing with businesses. The CMA’s role is to take action to prevent unfair trading practices that adversely affect consumers. This includes misleading advertising and endorsements on social media.
Confusingly the CMA isn’t the only body with a role when it comes to online advertising. The Advertising Standards Agency (ASA) is also responsible for investigating breaches of the advertising codes, which themselves are developed by the Committees of Advertising Practice (CAP).
Even more unhelpfully, because the CMA and the ASA look at ads in slightly different ways they don’t fully align. In broad terms, it’s possible to comply with the advertising codes enforced by the ASA while still not complying with consumer law for the purposes of the CMA.
But it doesn’t have to be hard. Both the CMA and ASA are clear that the labels used on posts need to be clear and understandable. Terms that the CMA and ASA expect you to use are:
- Ad
- Advert
- Advertising
- Advertisement
- Advertisement feature
You can use these terms with or without a hashtag.
As well as using the right word the CMA also expects the declaration to be:
- Transparent
- Timely
- Prominent
- Unambiguous
- Easy to understand
- Apparent without having to click a link to further information
What this boils down to is that ads need to be declared by using the word “ad” (or one of the variations set out above) at the very start of the post. It’s not enough to declare ads at the end of the post (because that wouldn’t be upfront would it) or use language that others may not understand like “affiliate” or “sponsored”.
When is something an ad?
Generally something will be an ad any time you receive payment, which means you have a relationship with a brand. Payment doesn’t have to mean cash – it can include:
- Commission such as affiliate schemes
- Receiving free services or products
- Receiving a loaned service or product
- Any other incentive – which might include things like discount codes
One of the things I absolutely hate is when I see an Instagram post that refers to an item being “gifted”. The fact is no items are ever sent by brands as a gift (really, don’t fool yourself if you receive something from a brand). If a brand is sending you something it is in the expectation that you are going to post about it. The cost of those gifted items is allocated to the brand’s marketing budget, because as I’ve already covered, social media is a powerful tool for marketing.
Sometimes something may seem like a gift because there’s no obligation to post. But for reasons I’ll outline below, that could be because where there is a requirement to post about an item it is also declarable income for tax.
Regardless of whether a brand says an item is a gift or whether you believe it to be a gift ultimately if you are receiving a product from a brand and you are posting about it it is likely that you will need to label that post as an ad and you will need to do so up front i.e. the first word in your caption. I know that that can feel really uncomfortable because most of us don’t really feel comfortable about selling to people on our social media. Just like in my analogy about putting advertising hoardings in your living room, the whole concept of overt marketing in our personal spaces can feel really icky.
If you’re on the Instagram hamster wheel you might also be worried about your followers having ad fatigue, especially when it can feel like every single post you scroll through is an ad. But if you’re worried that your followers don’t want to see another ad then I would ask why are you trying to sell to them? Obviously if you generate your income through brand income then it’s going to be really important for you to put that ad content online. But if you are someone who is making money from your social media then you probably have the time to be making sufficient content to intersperse with your ad content so that your followers won’t feel like they’re being served ads constantly.
If every single piece of content that you are creating needs to be labelled as an ad then what value are you giving to your followers other than being a means by which brands can sell through you?
Why “gifted” items are never free
So a brand has sent you something which you may see as a gift. But if there is a clear expectation (i.e. stated by the brand) that the item has been sent to you in return for you posting about it then you may need to declare the value of that item for tax purposes. The item will be treated as “payment in kind”.
I’m not a tax expert and so I’m not going to go into all the detail here around tax law but the basics you need to know are that if you are receiving a large number of free items then the value of these items may be relevant for your tax return. For example where you are sent a £20 nappy for “free” on the understanding that you will post about it on social media then the value of that item for taxable income is £20. If however you are sent a free item but also paid a separate fee for social media posts then the you only pay tax on the fee paid to you and not on the value of any items that you receive.
Most people will have a threshold of £1000 under which additional income doesn’t need to be declared. And I get it, that’s a lot of free nappies. But that threshold includes any additional income, whether it’s payment through affiliate schemes or simply selling things on eBay or Facebook marketplace.
If you need to know more about tax rules then have a look on the HMRC website or speak to an accountant.
Copyright and licensing
Most of us have probably heard of copyright but probably don’t really understand how it works or what it does other than protect certain materials. If you look at the front pages in any book you will always see a copyright notice asserting the author’s rights in the material. But copyright is about more than just books or songs.
Copyright can arise in most forms of content online including photos and your Instagram posts including captions. This means that in almost all circumstances you will be the copyright holder of the things that you create. It’s important to note that copyright does not necessarily protect an idea but it can protect the way in which the idea is expressed.
When you are working with a brand you may be creating photos and other content for that brand to use either on their own Instagram or on their website. It’s really important that you think about how this material will be licensed to that brand because ultimately whilst you retain the rights in the material that you create you can license it to be used by another person or brand.
You can also assign (i.e. give away) your rights in the material you’ve created, though it’s unlikely that this will happen where you are for example acting as a “brand representative” on social media. But you should be aware of this particularly if you’re entering into any kind of signed documentation with a brand because it may be that you are purporting to assign certain rights in the content that you create.
In using Instagram you are also giving Instagram a very broad licence to use materials that you create and this includes other users to use these materials through the tools the Instagram has created this means Storey shares and sharing as messages but does not include reposting content or taking screenshots of content.
Data protection
If you are using images of people in your work with brands then it’s also worth being aware that identifiable images count as personal data, which means you will probably need the consent of the person in the photo to use it as part of your brand work under data protection laws. Consent needs to be freely given and informed and can be withdrawn at any time (which would require you / the brand to delete the photo). In the case of children under 13 consent has to be given by a parent / legal guardian.
A final word…
So there we have it – an outline of the main legal issues to think about when you are working with brands. But of course this post isn’t a comprehensive look at every legal issue that could come up and often things will depend on the circumstances. Nothing beats proper legal advice so if you have a major concern about a legal issue it’s often worth investing in advice on your specific situation from a solicitor.
I could happily write about this stuff all day (in fact, that’s my job) so let me know if you’d like to see more posts like this one.
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