AANA Adds Provision To Self-Regulatory Code Requiring Ads To Be “Clearly Distinguishable As Such”
Monday 20 March 2017 @ 11.20 a.m. | Legal Research
The Australian Association of National Advertisers (AANA) has introduced a new section into its voluntary Code of Ethics, which requires advertising and marketing communications to be “clearly distinguishable as such to the relevant audience”. The change means so-called ‘social media influencers’ must clearly label any images that are sponsored content and that, for example, an advertisement targeted at children needs to ensure that a typical child will understand that it is advertising.
The new section was introduced from 1 March 2017. Other jurisdictions such as the UK and New Zealand have similar requirements. AANA’s Chair Matt Tapper said in a press release announcing the new provision:
“We drew on the input of Australia’s major brand owners across a wide range of product and service categories. Our Board is unanimous that a key principle of responsible advertising is that the commercial nature of the communication must be transparent and that brand owners should be accountable to the community for this via the Advertising Standards Board.”
An ABC report from Triple J radio program Hack says:
“Breaking the AANA code won't mean a huge penalty - the association is self-regulating and following the rules is voluntary. The rules only apply to the brands themselves. The Advertising Standards Board can ask for the ad to be taken down. The real danger is prosecution by the Australian Competition and Consumer Commission (ACCC) for breach of Australian Consumer Law (ACL). That hasn't happened yet in Australia - there have been no legal cases against social media influencers.”
Best Practice Guideline Examples
AANA’s Best Practice Guideline for Clearly Distinguishable Advertising makes reference to a number of different scenarios where there may be sponsored or marketed content and gives guidance on what disclosures are necessary.
If a company makes arrangements with third party ‘influencers’ to post sponsored content on their Instagram accounts and use a hashtag, AANA says:
“That content is likely to be considered a marketing communication and must be clearly distinguishable as such to the relevant audience, for example a tweet could include a tag @FabFaces or if there are a series of connected tweets in a short space of time, the final tweet could include a brand tag e.g. #FabFaces, #ad or similar wording.”
However, if the same company simply sends product to an ‘influencer’ without any stipulations, AANA says:
“Where there is no control by FabFaces over any statements the celebrity may make then any resulting communication is unlikely to be considered advertising or marketing communication.”
The chief executive of Tribe, a company that works with brands and social media ‘influencers’, Anthony Svirkis, told the Sydney Morning Herald he didn’t believe the new rules would have a big impact:
“They're just guidelines that require #ad to be placed on influencer posts which are paid for by brands… The reality is the best influencers have been doing this for a while. Our data shows it makes very little difference to engagement or audience sentiment when an influencer discloses a sponsored post.”
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