Trying to make social media influencers follow transparency rules around advertising has been a bit like herding cats.
New content creators pop up every day; anyone can do it, from teenagers posting beauty tips in their bedrooms to celebrities leveraging their personal brands, and all can post on several platforms at any time.
While the Advertising Standards Authority (ASA) has, since 2012, developed guidelines to promote transparency around paid-for posts on Instagram, TikTok, Facebook and the rest, it has taken considerable effort to make content creators understand that if they are paid in any way to promote a product or service then they have to come clean with their followers.
It’s not complicated: there’s a range of acceptable hashtags in the ASA code from #AD to #Gifted, and clear guidelines on how to use these labels.
However, the ASA is the advertising industry’s own watchdog and can’t compel anyone to follow its code. It can only “name and shame”, which it does in regular bulletins.
With the publication recently of the 2024 enforcement list from the Competition and Consumer Protection Commission (CCPC), influencers will have now realised they have more to be worried about than a few blushes. The statutory body’s powers include levying hefty fines and can go as far as the issuing of court proceedings.
This is the first time influencers have been served with compliance notices from the consumer watchdog for failing to use the correct labels to disclose the commercial nature of the content they have published online. Two were named.
Former rugby international Brian O’Driscoll, who has 370,000 Instagram followers, was found to have “engaged in a misleading commercial practice” over a post connected with Zerofit clothes. He was directed to “ensure that in all instances where a trader has paid you to use editorial content in the media to promote a product or service you must make it clear that such promotion is a paid promotion”.
Fitness coach Caroline O’Mahony, who has 822,000 followers on Instagram, was found to have “engaged in a misleading commercial practice” by her “failure to use the appropriate labels” to disclose the commercial nature of the content published, which relates to Caroline O’Mahony Coaching.
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Both were warned that their social media channels would be “the subject of further inspection to ensure adherence to this compliance direction”.
Meanwhile, the ASA’s regular bulletins continue to feature several influencers found to have breached its code by not disclosing the commercial nature of their social media posts.
Among those in its most recent notice was well-known influencer and beauty and fashion brand owner Pippa O’Connor. Her Instagram story promoting her own beauty products was found to have not been “correctly identified” as advertising and was “likely to mislead consumers about the nature of the content”.
O’Connor’s post was examined following a complaint to the ASA, and as is its practice it detailed how its committee reached its decision.
The CCPC conducts its business differently. It takes complaints from the public and from other sources but it also initiates a sweep of businesses. In April 2024, it wrote to 26 influencers across a range of sectors, reminding them of their obligations under consumer protection law in relation to labelling of content.
Both bodies – one with statutory powers, the other a self-regulatory association – are on the same page when it comes to the rules around influencer marketing. They worked together to develop the Guidance on Influencer Advertising and Marketing and are aware of each other’s decisions concerning influencers who fail to comply with transparency requirements for commercial marketing communications.
The consumer body has been clear that it is just getting started. It says it has several investigations ongoing in relation to influencers and further outcomes are expected this year
The clearest indication of the different powers of the two bodies is in how they sign off in their communication with those who fall foul of the rules.
The ASA ends with a reminder to all “named and shamed” parties – the influencer and advertiser – of the need to abide by the code. It’s a gentle reminder.
The consumer watchdog includes a page, as a point of information, noting that it can bring offenders to court and that fines can reach €5,000. It’s that sort of talk that will surely prompt influencers to get busy with code-compliant hashtags.
And while the CCPC says it operates on a case-by-case basis and has a “ladder of sanctions”, influencers who engage in marketing on social media would do well to consider that the Irish move towards a statutory footing to protect consumers in this area is consistent with practices across Europe. And the consumer protection organisations haven’t been shy about bringing influencers to court.
Sweden leads the way in its scrutiny of influencer marketing, with several cautionary court cases that resulted in substantial fines.
The naming of just two influencers as having received compliance notices by the CCPC seems a modest tally for an entire year, especially considering the numbers working in this growing sector and the much higher number the advertising watchdog ruled against during the same period.
But the consumer body has been clear that it is just getting started. It says it has several investigations ongoing in relation to influencers and further outcomes are expected this year. It also has plans to increase the frequency of its bulletins; its 2024 findings were released only in March 2025, and a year in the fast-moving digital environment is a very long time.
The confirmation last month by Revenue that it had issued 450 letters to social media influencers reminding them of their tax obligations – including their duty to declare income from advertisers as well as gifts – is a further sign that the glossy, reality-adjacent influencer world now comes with very real, not quite so glamorous business obligations.
