GUIDELINES FOR INFLUENCER MARKETING
The aim of the MCCAA Guidelines for Influencer Marketing is to provide clear guidance to the local influencer marketing community on when and how to disclose social media marketing practices. These guidelines are being issued in line with Article 7A of the Consumer Affairs Act, which empowers the Director General (Consumer Affairs) to issue guidelines on the interpretation of the provisions of the legislation. The guidelines are also being issued in line with Article 17 (1) (a) of the MCCAA Act which states that it is one of the responsibilities of the Office for Consumer Affairs to provide information, advice, and guidelines to the public relating to consumer issues.
Influencer Marketing is a form of marketing that relies on the promotion and selling of products or services through persons who have an impact or influence on different social media platforms. These individuals will, for the purpose of these guidelines, be referred to as influencers.
Influencers usually build their followings by sharing insights and images of their everyday lives on their social media pages or profiles. Any commercial content is usually interwoven in the personal narration to appear more authentic to consumers. Consequently, followers often trust the information conveyed to them and use it as a point of reference when searching for information or deciding which products/services to buy.
When influencers choose not to disclose commercial content or the material connection with the brand, whether it is against payment or gratuitous, consumers may be misled and hindered from making an informed purchase choice.
Identification of advertising or of any commercial content is essential for the consumers’ ability to objectively evaluate the product/service endorsed and hence, make an informed purchase choice.
Part VIII of the Consumer Affairs Act, titled Unfair commercial practices and illicit schemes, prohibits commercial practices that materially distort, or are likely to distort, the economic behaviour of the average consumer. This legislation specifically prohibits commercial practices that mislead consumers by, for instance, not disclosing:
This legislation defines traders as any natural or legal persons who act for purposes relating to their trade, business, craft, or profession and include anyone acting in the name or on behalf of a trader. In addition, traders are prohibited from falsely representing themselves as consumers and are hence, obliged to disclose the nature of commercial practices.
Furthermore, Article 51B (4) of the Consumer Affairs Act stipulates that commercial practices listed in the Act’s First Schedule shall in all circumstances be regarded as unfair. One of these practices is:
“Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer”.
All instances when:
Transparency is key. Consumers should be able to clearly distinguish between paid-for advertising and non-advertorial content.
This can be achieved by using clear disclosures for commercial communications. Acceptable disclosures include the following hashtags:
Disclosures should be obvious, prominent, appropriate for the social media platform used, and suitable for all potential devices. Disclosures should not require extra clicks to be visible.
This means:
Failing to disclose a commercial relationship between an influencer and a company breaches consumer legislation and is liable to investigations that may result in the institution of judicial proceedings by the Director General (Consumer Affairs). Non-compliance with regards to consumer protection law may also lead to penalties and/or compliance orders issued by the Civil Courts (Commercial Section).
It is the legal obligation of social media influencers, marketing agencies and brands to observe and adhere to consumer legislation.
Affiliate Marketing
Affiliate marketing comprises content that promotes products or services and contains a hyperlink or discount code through which influencers get paid or earn a commission when followers click on the link or use the discount code.
Average Consumer
A person who is reasonably well-informed and observant, considering the general presumed consumers’ expectations.
Commercial Content
Commercial content includes: a) content where there is at least one type of a clearly identifiable commercial practice; and b) content disseminated through various social media platforms with the purpose to commercialise, sell, promote or advertise a product, business or service.
Commercial Practice
A commercial practice means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers; whether it takes place before, during or after a commercial transaction in relation to the product
Disclosure
Clear, unambiguous declaration of a commercial connection between the influencer and a brand on content created for a social media platform.
Influencers
Individuals that use social media with the intention to influence perceptions of brands and products by creating and sharing content with other individuals connected to them through a variety of social media platforms.
Influencer Marketing
Influencer marketing is a type of marketing strategy that uses the influence of key individuals to create and promote content that focuses on the influencer’s positive experience with the product to reach and engage target buyers.
Material Connection
Includes any commercial transaction that may be monetary, gift or value in kind
Trader
Any natural or legal person who acts for purposes relating to his/her trade, business, craft or profession and includes anyone acting in the name of or on behalf of a trader.
Social Media Platforms
Social media platform means any social media-related service, application or platform, including blogs, that allows users to directly connect with one another through virtual communities and networks. These include, but are not limited to, Facebook, Instagram, Twitter, Snapchat, YouTube, and TikTok.
From time to time these guidelines may be updated as required and/or whenever there are legislative changes.
The information provided in these guidelines does not constitute legal advice and does not supersede or replace the legal requirements stipulated in the Consumer Affairs Act and other relevant legislation.
