Whether it’s a global celebrity or a micro-influencer sharing their foodie invites on Instagram, brands rely on their reach and credibility. But with influence comes great responsibility.
At Jamieson Law we’re often asked by agencies and brands about the rules around sponsored content, gifting and disclosure. Here’s a practical guide based on UK regulatory requirements.
Disclaimer: This article is for information only and does not amount to legal advice. For tailored guidance on disclosure obligations, contact Jamieson Law.
Influencers vs key opinion leaders (KOLs)
Influencers include anyone active on social media who can influence consumer behaviour, from celebrities to niche bloggers, regardless of their following.
KOLs are recognised experts whose credibility comes from professional knowledge. Even if a KOL isn’t typically considered an influencer, they still fall under the Advertising Standards Authority (ASA) and Competition and Markets Authority (CMA) guidance if they have a commercial relationship and post about the brand on social media.
For agencies this means you can’t assume that a ‘knowledgeable voice” is exempt from disclosure obligations. Transparency is key.
When is disclosure required?
In the UK, influencer activity is regulated not only by consumer protection law but also by advertising rules under the CAP Code, enforced by the ASA. The CMA also ensures that any commercial relationship is clearly disclosed to consumers.
Even if an influencer or KOL isn’t directly selling a product, disclosure is generally required where the brand exercises any ‘editorial control’, such as:
- pre-approval of posts or messaging
- requirements to include specific hashtags, images, or topics
- restrictions on mentioning competitors
- obligations to post within certain timeframes
- non-disparagement clauses.
If any of these are present, the content should be treated as a marketing communication and clearly labelled, usually with #ad.
Case study: Binky Felstead at Wimbledon
A recent ASA ruling involving Made in Chelsea’s Binky Felstead highlights how even informal arrangements can trigger disclosure obligations.
Felstead attended Wimbledon as a guest of Vodafone. Although there was no formal contract requiring her to post about the event, Vodafone provided free tickets and hospitality which the ASA treated as a commercial benefit. Vodafone also suggested specific hashtags and tags if she chose to post about the event. While there was no legal requirement to do so, the ASA found this gave Vodafone a degree of editorial influence.
The ruling confirms that disclosure is required even when posting is optional. The key point is that if an influencer or KOL receives a benefit and the brand has some influence over the content posted, the ASA considers it a ‘marketing communication’. Posts must therefore be clearly identifiable as advertising, typically by using #ad.
This case also shows that the ASA is tightening its interpretation of what counts as advertising, reinforcing the need for transparency and strict compliance by agencies or brands managing influencer campaigns.
So, who should be disclosed – @the agency or @the brand?
A common misconception is that the agency hiring an influencer on behalf of a brand should be the party that is disclosed. In practice, however, disclosure should point to the brand, as it is usually the controlling party or main beneficiary of the content.
That said, this area remains somewhat uncertain under current guidelines and rulings. However, as discussed, there is strong, and arguably growing emphasis on transparency from regulators. If an influencer receives any form of payment or benefit, such as meals, money, gifts, trips, or products, and the brand has any influence over the content, the post must be clearly identified as an ad and disclose the brand. In most cases, the agency is simply the intermediary arranging the engagement between the brand and the influencer.
The rationale is simple: consumers have a right to know who is behind the marketing message. For agencies, disclosing the agency rather than the brand could risk misleading audiences and breaching the CAP Code and CMA rules.
Practical takeaways for agencies
The ASA emphasises that influencers, brands, agencies, and platforms all share responsibility for ensuring ads are clearly identifiable. To stay compliant and protect all parties, agencies should:
- ensure contracts with influencers clearly identify the brand as the commercial beneficiary
- outline the influencer’s disclosure obligations in all agreements
- require that any content benefiting a brand is clearly labelled as advertising (#ad or similar), regardless of the influencer’s profile.
These straightforward steps help agencies protect themselves, their clients, and influencers from regulatory scrutiny, whilst ensuring transparency for consumers.
Conclusion
Rules around influencer content continue to evolve. Agencies and brands must stay on top of disclosure obligations to avoid sanctions and protect consumer trust.
At Jamieson Law, we provide practical, commercial advice to ensure your influencer campaigns are compliant and transparent. From drafting influencer agreements to reviewing marketing campaigns, we can help you navigate these complex rules with confidence.
