Under the influencer? Be honest.
An excellent article in Eater about viral food advertising (Cronut, anyone?) set me to thinking about so-called “influencers” and the sometimes grey area surrounding “paid for” posts and blogs. And by paid for, I mean receiving some financial benefit or thing of value, whether directly or otherwise.
I set to thinking about the law in the UK. I assumed that the whole back-scratching merry-go-round that passes for content on so many Instagram and Twitter accounts and blogs must be regulated. Spoiler: it is, sort of.
The rise and rise of Instagram
In around 2014/15 there appeared to be a marked shift away from long-form independent reviews, with actual words, towards the use of photo content on Instagram, with minimal description and a load of hashtags. I loved seeing pictures of people’s food. Other people loved seeing pictures of other people’s food. Everyone was happy.
For restaurants and chefs it was a cheap and cheerful tool to promote themselves and pretty much everyone with a decent phone camera could do it, though quite a few had rather sophisticated camera equipment and treated it as a photographic showcase.
In what I feel was the second wave of Instagram marketing, a restaurant, either directly or through its PR company, would hold an event and invite what started to became known as “influencers” to that event. It was entirely understood that the influencer would take lots of photographs of the food and post them on their Instagram feed or blog. I went to one of these, early on in my blogging career.
It was as bad as a lawyer event, a tribal gathering, where everyone pretends to be friendly but secretly all of them detest each other and bitch behind their backs. It wasn’t edifying.
I started to notice that my Instagram feed would suddenly become flooded with a photograph of the same burger/ice-cream/cake/noodles, at the same restaurant, posted by the usual crowd. They were all on the gravy train.
And I have been asked to such events. And occasionally, when it is something I am interested in I have agreed to go. I have posted pictures. And I did not at the time think about which hashtag to use or whether I had made it abundantly clear that I had been paid for.
I recently got invited to a soft opening by a friend. It was to ‘test the kitchen’, and I didn’t have to pay. I felt duty- bound to tweet a picture, though nothing was said. I name-checked the PR but I didn’t say I’d been given the meal for free. I posted a picture of a cheeseboard. It was lovely.
Would you have felt differently about my post if I’d said I hadn’t had to pay? You might have done. I should have done. I will always be clear from now on.
Is greed good?
Some Instagrammers became “Instagram famous” fairly early on. Many of those early adopters gathered thousands of followers before the rest of us came on board. It wasn’t that their content was so much better, more that they had worked out how the algorithm worked. Some of them (shocker) even bought followers. The more followers, the more of that precious influence. And precious it can be.
There are now numerous websites offering to put you, a bidding restaurateur or food producer, in touch with ‘key influencers’ as part of your marketing strategy, some of them even pinpointing how much the cash return might be from a particular influencer.
And look at this, in an eye-opening blog from Influence.co.
Follower the cash
Followers = cash and the more followers, the more cash. As restaurants and more particularly, their PR representatives, see the real reach of Instagrammers and their ability to raise the profile of a new launch/dish/product, we are in a new wave, where the Instagrammer/Blogger has gone from being simply a ligger to a ligger with attitude, demanding cash for content.
We have all heard about hoteliers and restaurateurs being blackmailed by customers on Trip Advisor. I do think that this is different though; this is about advertising-by-another-name.
Some Instagrammers are quite open about it. “PR-friendly” they say on their profiles, code-speak for I want freebies/money and will write lovely things about your product/client in return for some goodies or actual cash.
But poor Joe Public doesn’t know about the paying thing, because they aren’t in the loop. Do you know what the hashtag #sp means? I bet a lot of you don’t. Sponsored post. Because that’s like sooooooo clear #notclear #opaque #letsburyit. What about #invite? I know it means that you have been paid for, but do you?
And that old trick of using multiple hashtags, way below the bit of content that you see without opening up the post. Most people are never going to scroll down because, well, life’s too short. So if you hide the fact that this is an #invite right at the bottom, then most people are going to miss it. In a #disclosurenotdisclosure way, this, in my view, is misleading.
If the CAP fits.
Here, the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the Code), under the banner of the Advertising Standards Authority (ASA) is where one should look for the rules on non-broadcast advertisements, sales promotions and direct marketing communications. My view is that funded blogs, or blogs/mentions for freebies, or paid-for Instagram posts, or inducements given for coverage may well fall to be considered under the Code.
The Committee of Advertising Practice (CAP) is the self-regulating body that not only writes the Code but enforces it too.
For breach of the Code, as well as receiving a sanction from the ASA, parties can be referred to Trading Standards, under the Consumer Protection from Unfair Trading Regulations 2008.
I do quite like the formulation in the 2008 legislation, about where it might apply:
“A misleading action occurs when a practice misleads through the information it contains, or its deceptive presentation, and causes or is likely to cause the average consumer to take a different decision.”
I think deceptive presentation can lend itself to interpretation in two ways; the literal one, where filters and good photography make the thing look better than it is in real life, but also I think it can work where a post is pretending to be something it is not. Setting out gorgeous pictures and complimentary wording about a product or dish and holding it out as your unbiased opinion can certainly influence your follower to take a different decision, i.e. to go to that restaurant rather than another, or buy that particular brand of chocolate or similar.
But having said that, I think that the trading standards legislation would be hard to pin on your average food blogger or IGer, even if they did post a dodgy picture or say that something was the next best thing when it was actually just a little meh.
What does the ASA say?
The ASA may, in certain circumstances, consider that ‘user-generated content’ (UGC), such as social media posts, tweets, photos, reviews and blogs/vlogs created by private individuals, are subject to the CAP Code.
According to their own website “Most commonly this (i.e. being covered by the CAP Code) will occur when content is “adopted and incorporated” into a marketer’s own marketing communications.
In plain English, this means where the relevant post is retweeted or placed on the supplier’s ( e.g. restaurant, food manufacturer’s) own social media feed/website/ it could be caught by the CAP Code.
And where the Code applies, the content must be responsible and not misleading, harmful or offensive.
Affiliate marketing. What’s that?
“Members of the public acting as sales representatives and anyone contractually obliged to promote or advertise a company or product are equally covered by the Code and the ASA will consider the brand at least jointly responsible for the content”
If you take the money/free meal/product knowing that you have to write about it, or indeed being obliged to do so ( and remember, a contract doesn’t necessarily need to be in writing to be effective) you may be straying into ‘affiliate’ territory. Likewise, if you are promoting a special offer or discount, you might well be held to be part of a marketing campaign. Who knew?
By way of example, a tweet by Gemma Collins, on behalf of Toni and Guy, praising their services and offering a discount was held to be a marketing communication because she had not paid for her treatment and was asked to tweet (Toni and Guy (Lakeside) Ltd, 11 July 2012) and it bshould have been advertised as such.
What can they do to you?
The Advertising Standards Authority says that it likes to achieve its results by voluntary action. Where that doesn’t work, it may refer the issue to trading standards, who have published their possible list of sanctions here.
As they say, legal, decent, honest and truthful are the key words to bear in mind.
It seems that the Advertising Standards Authority is already onto this issue, but may only get involved in the most high-profile cases, or where celebrities are involved. There are, of course, many thousands of “sponsored” posts masquerading as independent happening on your timeline, all the time and most of them will be obvious. And keeping the thing in perspective, in the case of a sponsored meal, what’s the worst that can happen? You go there and it’s not that great. Or you try that new vinegar and it isn’t all that.
To me it’s a question of credibility. Instagram in particular started out as a means by which to share bits of your life by pictures. It was a gentle alternative to Twitter, using pretty images, as a sort of background wallpaper, perfectly designed to appeal to your monkey brain and give you that little hit of pleasure. Scrolling down to refresh? We all do it.
At some point, it became about selling. First, it was selling your (perfectly curated) life and then it morphed into using that (often false) manufactured persona/image to attract advertising revenue in the form of freebies/actual cash from people who wanted to connect to your followers. I suspect that in some cases, the attention came unbidden and was flattering. For others, it is clearly mercenary.
When Instagram works, it’s brilliant. As a means for restaurants (and chefs in particular) to communicate directly with the public it’s an excellent tool. But with the steady rise of the paid-for picture, the feel of Instagram has changed. I don’t want to see the same cheesecake six ways from people I vaguely know. Instead of making me want to try it, it makes me want to reach for the “unfollow” button.
And getting a ‘like’ from an Instagrammer with ten posts and ten thousand followers always makes me reach for the ‘Block’ button.
In a pop-will-eat-itself moment, I raise a hope that some of the more uninhibited of the freebie-loaders will take a step back and consider whether their reputation might be better served by being truly independent. Then we might give a toss again about their opinions.
In the meanwhile, be honest. If you’re treated to something – and lucky you – make that clear. If you are honest about it, your readers can form their own view about the value of your opinion. If you haven’t paid for your meal, do say that. If you have been given that drink as a gift, say so. Perhaps the words #paidfor might be slightly more palatable than the more honest #ad and will do the job just as well.
Disclaimer: This is not legal advice, just my humble opinion and cannot be relied upon. Lawyer to the bitter end.