INFLUENCER MARKETING
Using your influence Amy Ralston, a solicitor in the specialist Intellectual Property, Information Technology and Data Protection team at Stephens Scown LLP, advises leisure and tourism businesses to make sure they are compliant with consumer protection law when using influencers… Hotels, leisure centres and selfaccommodation businesses (to name a few) are becoming increasingly aware of the benefits of influencer marketing and an influencer’s ability to market directly to the business’ target market.
The business has a responsibility to ensure that all posts promoting them are compliant with consumer protection law
However, gifting an influencer a free stay, offering discounts or other incentives is not without its risks and there are rules that businesses and influencers need to follow. It is important that businesses fully understand the rules and regulations of influencer marketing – one of which is the need to comply with consumer protection law, which can and has been enforced by the Competition and Markets Authority (CMA). WHAT IS THE LAW? The Consumer Protection from Unfair Trading Regulations 2008 (CPR) aim to prevent unfair practices being used by traders and businesses (including influencers/content creators) when dealing with consumers. They include a general duty for businesses to act in a fair and honest way, which extends to the way leisure and tourism is marketed – including ad content on
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TALKING TOURISM
social media and, therefore, to any advertisement by influencers or socialmedia content creators. A breach of the relevant laws may result in you and/or your business being investigated by the CMA – the CMA has statutory powers to investigate such breaches. This could lead to a case being brought against your business in the civil courts but may also lead to criminal sanctions; it is important that businesses understand these regulations and implement risk-mitigating strategies for online brand promotions (for example through influencer partnerships, or simply providing an influencer a gifted or discounted stay). It is also important to note that the Advertising Standard Authority (ASA) also enforce advertising rules in the influencer market industry, however this article solely focusses on the powers of the CMA. For more information on the ASA powers please check out our article ‘Brands and Influencers - the risks of not complying with ASA rules on Instagram’, which you can find on our website. OMITTING OR HIDING MATERIAL INFORMATION The relevant regulations prohibit any commercial practice which omits or hides material information, or which conveys such information in a way which is unclear or confusing to consumers; it is prohibited to use editorial content (such as grid posts, reels, stories, videos etc.) on social media to promote a service where a business has paid in some way (“payment” includes gifted stays or other incentives) for the promotion without making clear in the content that it is advertorial content. WHAT ARE THE CMA’S POWERS? Under the Enterprise Act 2002, the CMA has the power to investigate if they suspect a breach of the CPR. In the event that a business or individual does not cooperate with the investigation, the CMA can apply to the court for powers to compel compliance with its request for information and disclosure.
SPRING 2022
