Compliance

So, you want to be an influencer? Tips for compliance

By February 21, 2024March 18th, 2024No Comments

Written by Sarah Zivoin.

So, you want to be an influencer? Tips for compliance

Creating in a digitized world has opened the door to opportunities once unthinkable for creators. Developing content online, whether it be blog, video or photography, can generate an unexpected increase in viewership following you.  Such popularity can cause your followers to rely on your content and give your opinions more weight than the opinions of others. This influence has value which advertisers have acknowledged by offering to compensate online creators to develop or share content about the advertiser’s brand.  Through influencers, an advertiser is able to reach an audience to which they may not have had access when using traditional media. 

Given the effectiveness of this form of advertising, influencer marketing has caught the attention of regulators to ensure that the interests of the end consumer are being maintained.  These regulators include Canada’s Competition Bureau, whose role is to ensure compliance with the Competition Act, as well as the Canadian advertising self-regulating organization, Ad Standards.  They advise both creators and advertisers alike on compliance measures when creating influencer content as both are considered responsible for upholding the requirements of the Competition Act.  

Below are some common tips to follow as an influencer:

  • Clearly disclose material connections with the business, product or service being promoted
  • If you have a family connection with the business or receive something in exchange for your content posted, your opinion may be considered biased by your followers.  Providing disclosure of any such material connection helps your followers make a more educated judgment when evaluating your opinion.  The disclosure should be understandable, apparent, visible on all devices without need to search for it and made on each social media platform used.  Such disclosures need to travel with the content if it is shared, so they are not lost.  Depending upon the content, both audio and visual disclosures may be necessary.  
  • Use of hashtags such as #ad or #sponsored are common acceptable disclosures of a material connection. 
  • Additional tips with illustrative “do’s and don’ts” regarding acceptable disclosures on various social media platforms have been published by Ad Standards in its Influencer Marketing Disclosure Guidelines. The Influencer Marketing Disclosure Guidelines is a helpful resource to review when determining how to make disclosures for your content. 
  • No false, misleading or disparaging content
  • Any statements you make within the content you post about a business, product or service should be based on facts, on your actual experience, or through proper and adequate testing.  If you are endorsing a business, product or service, you need to have used it.  Further, care should be taken to ensure that the statements made are not too broad and do not go beyond your own experience with it.   
  • Care should be taken to avoid referencing an individual or company in a negative light. If your content or content from anyone else which you repeat refers to an individual or company in such manner as to lower their reputation in the eyes of your followers, the individual or company may have a claim against you for defamation.  

 

  • Products featured in your content may be subject to government advertising regulation
  • In promoting, either directly or indirectly, the sale of any food, drug, alcohol, tobacco or cosmetic products, there are various Canadian laws which regulate their advertising. These laws are complex, so much so that prior to broadcasting an advertisement where these products are featured, advertisers will seek preclearance from organizations to ensure compliance. For example, Ad Standards provides pre-clearance services for the advertising of alcoholic beverages, cosmetics, food and health products. Should you decide to post content for an advertiser who sells a regulated product, it is imperative that you provide a copy of your content to the advertiser for their review prior to your posting online in case there is anything in your content that will violate any product-specific law.   
  • Watch who or what is featured or visible in your video
  • If creating video content, you should be careful that no individual or company is identifiable in it unless you have received their prior approval, preferably in writing. This also includes logos, names or other trade-marks that are visible in your content.  If you do not receive approval, you may need to edit or digitally blur your video to remove or mask such images prior to your posting. 

As compliance is a shared responsibility between influencers and advertisers, it is advisable that a written agreement is made between you, as the influencer, and your advertiser to state what type of influencer content is deemed acceptable as well as to accept your plans to disclose any material connection to the content. If you are to promote a regulated product, your agreement should also include protection for you in case, unbeknownst to you, your content violates any product-specific law. If, after the content is posted, the advertiser no longer wishes to be connected to it or if you, as an influencer, wish to disassociate yourself from the advertiser for any reason, the agreement may provide you both with the right to remove the content from whatever platform on which it was posted.  This agreement is also a good place to state if either of you is expected to be exclusive to the other and for how long, whether the advertiser expects you to only endorse its product within a particular category of similar products on the market or you expect the advertiser to only send its products to you for endorsement within a particular category of influencer.    If each of you is strictly non-exclusive to the other, then that is also important to put into an agreement.  Of course, whatever you are to be paid or receive in exchange for your endorsement should also be in an agreement.

Most advertisers are careful to use only influencers with the right reputations to profile and build their client’s brand.  You have a personal brand as an influencer, so you need to be careful to protect and build your own brand.  You need to be careful to avoid endorsing a shoddy or unsafe product or service, a disreputable business, or a fraud.  Do not rush to use your influence without thinking about the product, service or business you are endorsing.  If you are concerned about the risks you may be taking by endorsing certain products or services that can cause serious injury or loss to your followers if they do not work properly, have a conversation with the advertiser about being included in its insurance coverage or with an insurance broker about insurance of your own to protect you. 

This article is informational and not intended as a substitute for legal advice.