When is an ad not an ad? Why the ASA’s ‘Making it clear when ads are ads’ has left Undertow Media with more questions than answers

After submitting our thoughts on the new ASA influencer guidelines applicable from this week, we have had numerous conversations around the breakout table and with clients about what the new, simplistic rules mean.

PR agencies are known as the best route to engaging with influencers – and this is because we don’t need to pay for every interaction with them. Why?  Because we are well connected and work hard to create win-win opportunities for both parties and connect influencers with brands they already love or just don’t know they do yet. Our job is to negotiate all day on our clients’ behalf to get them the spread they crave.

Which is why we see the simplistic new ruling as problematic.

We’re all for disclosure of paid arrangements. Outlining clearly ‘AD’ at the beginning of a paid post or Story makes things transparent. In other words, this should tell the consumer that a brand or business has controlled the message, given direction of the look and feel etc etc..

The part that gets murky is when there is no payment but the product or service is gifted. To put this in perspective this could be a bottle of fake tan from social media darlings Bondi Sands worth $30, some lashes from Ardell sold at Mecca worth $15 or perhaps a free drink at the best table at Andiamo (disclosure: #clients). 

Under the new laws, all posts where there is a relationship with a company or a brand (even if it’s your own) are treated as an advertisement. 

Sure, you can compare apples to tomatoes but only one belongs in a smoothie.

Unlike a paid partnership, a gifted post or comment like the above examples comes with no control over the message, the caption, the hashtag or the composition. It’s not a given, but a lot of work goes into cultivating and profiling the right people for the offer so that it suits their content and interests and they likely will choose to post it and say what they like about it in their own words.

Because of this relationship, our offered solution to the ASA was that these gifts are labelled as such (i.e. ‘GIFTED’ at the beginning of those transactions), as there is a distinct difference that has been missed within the guidelines.

This is really clear and, we’d argue, a step further than what we are asking our mass media be held to.

We reckon up to 90 per cent of consumer editorial (and a fair chunk of corporate) is pitched, promised and procured by comms people.  There’s nothing wrong with this, as the media still has the ultimate say in how it is presented and indeed if they run it at all (much like our definition of ‘GIFTED’), but why are we not asking salaried and arguably well-funded media to disclose this when we expect influencers to?

As consumers, we actually want to know what has been paid for by a brand and what has jostled for space (in the same vein as editorial) to be crystal clear on social feeds.  The catch-all provided here for social media by labelling everything an ‘AD’ does the exact opposite.

Further if every magazine editor or writer, tv producer or radio host had to clearly disclose a gifted product (– not through a veiled change of font or because we have joined the dots that they ran an ad two pages back…), magazines and newspapers would likely be a bit thicker!  In fact, some state-funded shows who pride themselves on being advertisement free would be caught with their pants down.

This guideline’s expectations laid out for its broad definition of who is an Influencer – ‘someone who has access to an audience (regardless of size)’– that’s you, me, your neighbour, Simone, Winny and Harold the Giraffe – are extreme.  Its interpretation means that if you posted a free Villa Maria (#client) mini gifted or provided gratis to you at the Best Awards without disclosure you could well have a complaint coming your way.

One other thing.  The current guidelines also run a massive risk of misinformation.  We already have people (and it’s only a few) that pretend they are working with brands by tagging them or thanking them.  Now they only need to show a product and write AD to pose as an official paid partner. It is becoming even harder to differentiate between the two under the new system and if they haven’t been paid to say it, who is liable if the information is wrong and causes gross damage?

There have been at least two occasions when our agency has been caught up in influencer misdeameanours or simply ill-timed posts, but neither have been paid and neither we had control over.  While we would never condone an ad running on Christmas Day or a tone-deaf selfie on the day of a national disaster for example, an influencer choosing to post something we sent them months ago and tagging ‘AD’ can place brands caught in a crossfire into crisis mode.

So while there are more questions than answers for us, for now we have created our own simple guidelines to include in all interactions with influencers so that we comply, and will be closely monitoring as we always have each paid and gifted post so that we can be sure rules are being followed and we are not creating even more shades of grey.

Bottom line is that whilst these guidelines are a start in clearly identifying strictly paid-for content, there is a long way to go to actually levelling the playing field and creating the fair and transparent industry that the guidelines sought to fill.


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