To everything there is a season: a time to blog; a time to legislate?
The blogging world in Ireland has been turned on its head since the beginning of 2018, as the credibility and social responsibility of those in the business has been called into question. The buzz term “influencer” which may be foreign to some, has in the past number of years proved to be a lucrative profession. Essentially, a form of marketing, ‘influence marketing’ works where influential people are the chosen focus, rather than the target market as a whole. It is an effective method of advertising for brands and a source of income for bloggers, which has become a fast favourite of consumers or “followers”, trumping traditional print media tenfold. As the popularity of the influencer grows, so too however does the social; moral and ethical responsibility owed to the public.
Claims that photographs are altered or photo shopped before being published on social media platforms, to promote a less than realistic version of themselves, has meant certain bloggers are facing significant public condemnation. Critics argue that as influencers, these people are role models to members of society, including the young and the vulnerable, thus, promoting an unattainable and unrealistic perfection is damaging. The argument can however be made that one should not have their personal content or image (altered or not) subject to censorship by a Public Body. The real problem arises when altered, enhanced or falsified images or content are published in relation to paid sponsorship. This is what’s known as misleading advertising.
Advertising in Ireland is monitored by the Advertising Standards Authority for Ireland (ASAI) which is an independent self-regulatory body set up and financed by the advertising industry. The ASAI act to ensure that all commercial marketing communications are legal, decent, honest and truthful. The ASAI dictate the rules on advertising, as set out in their ‘Code of Standards for Advertising and Marketing Communications in Ireland’. Complaints may be made to the ASAI on an anonymous basis, if desired, for investigation. The ASAI will investigate complaints and it is up to the advertiser to prove, on the balance of probabilities that the advert and the relevant claims are accurate and true. Thus, a heavy onus is placed upon bloggers to ensure their advertising content is honest, transparent and true to life.
This is not the first time Irish bloggers have come under scrutiny. Last year the ASAI clamped down on bloggers by introducing new guidelines in an attempt to prevent consumers from being misled by blogger-brand sponsorships. Such guidelines were necessitated by an influx of complaints that bloggers content lacked authenticity, as they were being paid to promote a certain product in a certain way. The guidelines place an obligation on bloggers to clearly declare that the post is a paid-for promotion to “ensure that all marketing communications are easily identifiable as being separate to independent editorial content”.
Advertising in Ireland is further protected by the Consumer Protection Act 2007 (“the Act”). This Act sets out the rules that apply to claims made about goods and services and acts to protect the consumer from false or misleading advertisement. This piece of legislation prohibits the advertiser from making false claims about goods, services or prices. This includes claims made about benefits of a product or a service. Where such claims are found to be exaggerated or misleading, the advertiser may find themselves in violation of the Act.
Where the consumer has suffered detrimentally on foot of the false or misleading information of an advertiser, they may be entitled to compensation for the loss or damage in Courts under the Sale of Goods and Supply of Services Act 1980. The consumer would need to prove, to the satisfaction of the Court, that damage or loss was caused to the consumer and that such damage or loss was caused as a result of the false or misleading claims or information of the advertiser.
For now, the debate continues as to the extent of the role and responsibilities of Irish bloggers. In an industry which continues to grow at such an exponential speed, one element becomes apparent: clarification and certainty as to the legal parameters of ‘influence marketing’ is required – to protect both blogger and buyer.
Contact us at Cantillons Solicitors at +353 (0)21 4275673 or firstname.lastname@example.org if you would like more information.
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