The CMA has announced that it has taken action to ensure that in future, Facebook Ireland Ltd, which operates Instagram in the UK, will do more to prevent “hidden advertising” on its app and website. The aim is to make it much harder for people to post an advert on Instagram without labelling it as such. Clear labelling of incentivised posts is required under advertising and consumer protection law so that people are not misled.
Background
The activities of social media influencers has been the subject of controversy for some years and both the ASA and the CMA have issued (sometimes conflicting) guidance and investigated concerns. In particular the CMA has been investigating hidden advertising on Instagram because some social media influencers are posting content about businesses without making clear where they have been paid or received other incentives do so, as well as concerns that Instagram was not doing enough to resolve the problem. Incentivised endorsements are defined by CMA guidance as any situation where a user posting has received any payment or gift from the brand in the past year (irrespective of whether this was “in exchange for” the post). This includes any type of financial or non-financial benefit, as this could influence their opinion of the product. Not labelling posts accordingly breaches both advertising codes and the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277).
The new process
Instagram will now make it easier for all users – and the businesses they promote – to comply with consumer protection law when posting content.
Instagram will, among other things:
- prompt users to confirm if they have been incentivised in any way to promote a product or service and, if so, require them to disclose this fact clearly;
- extend its ‘paid partnership’ tool to all users. This enables people easily to display a clear label at the top of a post; and
- use technology and algorithms designed to spot when users might not have disclosed clearly that their post is an advert and report those users to the businesses being promoted.
Under the commitments, Instagram is also required to involve businesses in the changes by creating a tool to help them monitor how their products are being promoted. As a result, businesses should do their part to comply with consumer protection law and take action where appropriate, including asking the platform to remove posts if necessary. All this has to be done as soon as possible, and in any event by the end of 2020.
Instagram will report its progress against all commitments to the CMA regularly.
The CMA’s announcement applies to all users in the UK as well as anyone globally who directs their posts towards Instagram users in the UK. It is part of a wider investigation into misleading online endorsements.
