Hey influencers, #stayhonest

Content creators are legally bound to make it clear when they're involved in a commercial partnership (Picture: Adobe)

Social media marketing has rapidly evolved into a powerful tool for brand building in the 21st century. From fashion and beauty to tech and toys, influencer partnerships have become a go-to strategy for businesses aiming to maximise consumer reach and enhance brand reputation.

As the digital economy grows, influencers are playing an increasingly central role across industries, raising questions about the distinction between personal content and commercial advertising.

From an influencer’s perspective, the rise of social media marketing has unlocked new opportunities to advertise and monetise their content. Individuals are now able to leverage their platforms to promote products and services, positioning themselves as brand ambassadors.

Laws around influencing are in place, but enforcement has been patchy, says Amina Amin

However, the rapid evolution of this space has made it difficult for regulators to keep pace with emerging challenges surrounding this modern form of advertising. A key concern is the consumer’s right to know when content is being promoted as part of a commercial relationship. This principle underpins advertising transparency and aims to ensure consumers are not misled about whether a post reflects genuine opinion or paid promotion.

The UK has been ahead of the curve here. In 2008, it expanded its advertising laws to cover the growing influencer market, primarily through the Consumer Protection from Unfair Trading Regulations 2008 and CAP Code (administered by the ASA), which both require influencers to clearly disclose paid partnerships and the commercial nature of their content.

Despite these measures, enforcement has remained patchy. A 2021 report by the Advertising Standards Authority (ASA) revealed that 65 per cent of sponsored Instagram Stories failed to meet disclosure standards. This triggered warnings from the ASA and a renewed focus on compliance.

In response, the ASA and the Competition and Markets Authority (CMA) issued the 3rd edition of their influencer marketing guide in 2023. The updated guide provides clearer direction to influencers, brands and platforms, aiming to ensure all sponsored content is immediately identifiable to the public.

Therefore, to remain compliant, influencers posting in the UK must: always insert a disclaimer on content that is being posted on behalf of a brand (for example, through the use of "#ad" or a platform's own disclosure tool); ensure that the disclaimer features across all relevant content, including all individual posts, Stories, videos and reels; make the disclaimer clearly visible; and be clear in all posts if there is an ongoing partnership with a particular brand.

Both influencers and businesses should seek specialist legal advice before entering into a commercial relationship for promotion services. This will reduce the risk of a breach, which can result in ASA and/or CMS sanctions such as receiving reputational damage or having trading privileges withdrawn.

Ultimately, the core message is to be transparent. Regulators expect full disclosure of commercial arrangements even if content is being posted on behalf of a brand. From a business perspective, it is vital that you act in line with the law; as while influencers can boost your reputation, irresponsible use of these services may have the opposite reputational effect.

Amina Amin is a Senior Solicitor in MFMac’s Media Manufacturing and Technology team​