Hidden advertising
Hidden advertising is also referred to as non-identified advertising, or as covert advertising. It occurs when advertisements are not sufficiently marked as ads. Hidden advertising is deemed an online advertising harm. This resource breaks down what exactly hidden advertising is, who it affects, who regulates it, and how to stay on the right side of hidden advertising regulation.
To ensure consumers are protected, advertising must to be obviously identifiable as advertising.
This means that it should be immediately obvious to a consumer when the media content they see, hear or interact with is advertising. Viewers of social media content should not have to ‘play the detective’ to deduce the status of that content.
Content creators can have a lot of influence over people’s buying decisions if they promote a product or service in their posts. People need to know if content creators have been paid, incentivised or in any way rewarded to endorse or review something in their posts, or if they have an ‘own-brand’ relationship with brands. It’s important that they make this clear to their followers. This needs to be clearly stated when a product, brand or service is promoted, tagged, linked or endorsed in any way.
Failure to make clear when an ad is an ad may mean the content is classed as hidden advertising.
Rules apply across the supply chain including content creators, influencer marketing agencies and talent agencies, brands and social media platforms.
The following organisations all have regulatory responsibilities for ensuring paid for endorsements are properly labelled on social media platforms.
- The Advertising Standards Authority (‘ASA’)
- The Office of Communications (‘Ofcom’),
- Trading Standards Services (‘TSS’)
- The Competition & Markets Authority (‘CMA’)
The Advertising Standards Authority (ASA) is the UK’s independent advertising regulator. The ASA applies the Advertising Codes, which are written by the self-regulatory Committees of Advertising Practice (‘CAP’).
Its UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the ‘CAP Code’) is the rule book for nonbroadcast marketing communications and is relevant to influencer marketing.
The ASA is considered an ‘established means’ for keeping advertising in line with certain pieces of consumer legislation.
While it can refer brands and influencers to Trading Standards Services where a breach of the CAP Code is also likely to be a breach of consumer protection law, this is rare as the self-regulatory system is typically successful in remedying serious or repeated breaches of the Code.
If a consumer would like to make a complaint about hidden advertising on social media, they should consider complaining to the ASA as their first point of call.
Want to know more? We’ve created an ASA overview page which links to:
- ASA guidance on influencer marketing
- ASA rulings on influencer marketing campaigns
- ASA’s powers of enforcement
- How to make a complaint to the ASA about an influencer marketing ad
Trading Standards Services are local authority departments in England, Wales and Scotland and part of the Department for Economy in Northern Ireland.
They have the duty to enforce consumer protection legislation (such as the Consumer Protection from Unfair Trading Regulations 2008 “the CPRs”).
The CPRs apply to everyone in the advertising chain, including brands, content creators, intermediaries (for example marketing agencies) and social media platforms. TSS may investigate brands, content creators, or platforms which breach the CPRs. TSS also act as a statutory backstop to the ASA.
Ofcom is the statutory regulator for the communications industries in the United Kingdom. It is responsible for the regulatory framework applying to UK established video-sharing platforms (‘VSPs’) under the Communications Act 2003 (‘CA03’).
Under the CA03, VSPs are required to take such measures as are appropriate to protect users from harmful material, including in relation to the transparency of advertising (the CA03 sets out a list of the measures VSPs must consider taking).
There is a list of VSPs subject to the regime on Ofcom’s website. In December 2021, Ofcom published guidance on the advertising measures. In the first instance, consumers should complain to the ASA, which has a co-regulatory relationship with Ofcom.The CMA is the competition and consumer protection regulator in the United Kingdom. The CMA is empowered to enforce a range of consumer protection law, including the CPRs For more information, see the CMA’s homepage.
The CMA focus is on market-wide issues affecting consumers and it does not offer advice or guidance on specific individual complaints.
Content creators and the rules
Exploring which hidden advertising rules apply to content creators
Which rules apply to content creators? Let’s start off with the ASA and the CAP Code.
The ASA applies the Advertising Codes, which are written by the self-regulatory Committees of Advertising Practice (‘CAP’).
CAP's UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the ‘CAP Code’) is the rule book for nonbroadcast marketing communications and is relevant to influencer marketing.
The ASA enforces the CAP Code.
Section 2 contains rules about how adverts should be obviously identifiable as adverts.
Section 3 sets out rules that advertisers must follow to avoid misleading people.
The ASA can act when content falls within the scope of its rules, for example, when the brand exercises control over the relevant content or it contains affiliate marketing links.
Here is the ASA’s CAP Code.
The ASA adopts a broad interpretation of ‘control’: as a rule of thumb, if influencers are not completely free to do and say whatever they want, whenever they want about a product for which they have received payment or payment in kind, the ASA is likely to consider the brand exercises control.
In practice, this means there are very few cases that the ASA rejects or refers to other bodies because the control test has not been met.Most influencers follow ASA rulings. For those who don't, rather than punish them, the ASA aims to work with them to help them stick to the Advertising Codes. However, for the small minority of influencers who are either unable or unwilling to work with the ASA, some of the sanctions at our disposal can have negative consequences.
We’ve created an ASA overview page which details the powers of enforcement the ASA can use.Now let's look at content creators, the CMA, Trading Standards and consumer protection legislation
The Competition and Markets Authority (CMA) along with the Trading Standards Services (TSS) both enforce the CPRs which contain rules prohibiting content creators and others from engaging in hidden advertising, in particular:
- Using editorial content in the media to promote a product without making it clear you have been paid (Banned Practice 11)
- Creating the impression of being a consumer (Banned Practice 22),
- Professional diligence (Regulation 3),
- Misleading actions (Regulation 5) and
- Misleading omissions (Regulation 6).
The CMA has also published guidance for content creators (in addition to the guidance it has co-published with the ASA) on how to comply with consumer protection law.
Brand advertisers and the rules
Exploring which hidden advertising rules apply to brands working with content creators
Brands are also subject to Section 2 and Section 3 of the ASA’s CAP Code when the content falls within the scope of its rules.
The ASA has an escalating sanctions regime, including
naming on its list of non-compliant brands/influencers,
targeted on-platform advertising to social media users to highlight non-compliant influencers
referral to platforms for enforcement sanctions.
The ASA can also refer influencers or brands breaching the CAP Code to Trading Standards Services, who may take enforcement action.
We’ve created an ASA overview page which links to
ASA guidance on influencer marketing
ASA rulings on influencer marketing campaigns
ASA’s powers of enforcement
How to make a complaint to the ASA about an influencer marketing ad
The consumer protection legislation (such as the Consumer Protection from Unfair Trading Regulations 2008 ‘CPRs’), as enforced by Trading Standards Services and the CMA, apply across the supply chain and so also apply to brands.
In particular, brands engaged in hidden advertising may breach:
- Banned Practice 11 (Using editorial content in the media to promote a product without making it clear you have been paid),
- Banned Practice 22 (Creating the impression of being a consumer),
- Regulation 3 (Professional diligence),
- Regulation 5 (Misleading actions) and
- Regulation 6 (Misleading omissions)).
Unlike the CAP Code, the CPRs do not have a requirement that the brand exercises control over the content.
The CMA has published guidance for brands on how to comply with the CPRs.How content creators can be clear with their audiences
Content creators can have a big impact on a customer’s buying behaviour. Whenever a creator is incentivised in any way to promote a brand, or product in their social media content it’s important that all this content is clearly identifiable as an ad (or advertising).
All commercial content must be correctly labelled and clearly identifiable as an ad. This also includes where you post about any gifts you’ve received, even if there’s no obligation for you to do anything with it.
To do this, all labels must be clear, prominent and easy to understand. It is not enough just to tag a brand in your post, use discount codes or affiliate links.
As a content creator you should use a label that clearly identifies your content as an ad, or advert, such as:
- Ad
- Advert
- Advert
- ‘AD’
- Advertising
- Advertisement
You should avoid unclear or ambiguous terms such as
- #gift
- #gifted
- #sponsored
- #spon
- #aff
- #affiliate
- #collab
- #PRTrip
- ‘PRHaul’
- ‘Funded by’
- ‘PR Stay’
- ‘In association with’
- ‘thank you’
- ‘made possible by’
- ‘my products’
- ‘mybrand’
- ‘ownbrand’,
- or just naming the brand.
Social media users should be able to understand when a content creator's content is an ad, as soon as they access or engage with it, regardless of the format or media used.
Disclosure labels should not be hidden or buried in many other hashtags or poorly contrasted with the content background.
It must be immediately clear that your content is an ad. Your audience should not have to:
- scroll or select the link for more information
- re-size the screen on a device to access the content
- study the content carefully to see the disclosure
- access your profile page or bio
- already be aware of previous content you’ve posted
If they do, you will need to adjust or edit your content to ensure your audience can recognise it’s an ad.
All promotional content should be labelled as advertising, and this must be obvious as soon as anyone engages with the content.
This includes content such as podcasts or videos, where the disclosure for ads must be given at the beginning of the ad.
If you use carousels (video or photos), or sequences where your audience can access individual posts: you must also label each item that contains promotional messaging.
If you own (in full, co-own or in part), or are employed by a brand and use your social media account to promote its products, you must make this known and clearly label these posts as ads. Visit the Pretty Little Thing / Molly Mae Hague ruling for more information.
You should not rely on your bio, previous posts or selecting links for more information for your followers to discover what relationship you have with the brand you’re promoting or advertising.
For example, visit Advertsing Standard Authority (ASA)’s rulings for Charlotte Dawson t/a charlottedawsy, Jamie Genevieve or, more recently, Myleene Klass, which explains this.
Please note: Guidance from the Influencer Marketing Trade Body is not legal advice.
The information provided on this page comes from the following sources:
- REGULATORY ROLES IN TACKLING HIDDEN ADVERTISING published by the Asa, cma and ofcom. Retrieved 28 November 2022
- Business responsibility and social media endorsements published by the CMA 03 November 2022. Retrieved 28 November 2022
- Content creators and social media endorsements published by the CMA 03 November 2022. Retrieved 28 November 2022
Influencer Marketing Trade Body
