Influencers in Ireland served reminder of correct labels to disclose commercial content

Former Ireland rugby international, Brian O’Driscoll, and online fitness coach Caroline O’Mahony, were two social media influencers mentioned in the CCPC’s publication regarding their enforcement activity for 2024.

Both were contacted by the CCPC in November 2024 over Instagram content posted in April 2024 to be reminded of their obligations under consumer protection law to label any social media posts as an ad if the post promotes a brand which they have received a commercial benefit from. The compliance notices directed O’Driscoll and O’Mahony to amend a number of promotions posted on their Instagram accounts to make them consumer law compliant and appropriately label same as paid promotions.

They were not the only influencers to receive this reminder, however they were the only ones to later be served with compliance notices when it was found that posts on their accounts continued to breach consumer law.

While these are the first influencers to be served with compliance notices, they will not be the last as the CCPC is ramping up its activities in that area. Brian McHugh, Chairperson of the CCPC, has said “we have several investigations ongoing in relation to influencers and we expect further outcomes this year”. With the rise of social media campaigns, brands and influencers must be mindful of their consumer law obligations to avoid non-compliance and potentially having to face CCPC compliance notices themselves.

New rules on online labelling

Influencer marketing on social media can significantly shape consumers’ opinions and purchasing behaviour. It is therefore important that the labelling of any commercial content is clear, prominent, honest and instantly recognisable as representing a commercial relationship.

Influencers advertising through social media must familiarise themselves with their obligations under the Consumer Protection Act 2007 (the 2007 Act) and the Advertising Standards Authority for Ireland’s (ASAI) Code of Standards for Advertising and Marketing Communications.

To assist influencers and brands, the CCPC and ASAI have issued helpful guidance, applicable to everyone who promotes or recommends products or services on social media in exchange for some commercial benefit, both monetary and non-monetary. This includes influencers, content creators, online personalities, bloggers and vloggers, celebrities or media personalities. It also applies to social media platforms where it is possible to generate and share content from a profile for the purposes of promoting and/or recommending products or services to consumers. Types of commercial benefit include financial payments, commissions, proceeds from sales, free or discounted products, experiences, trips and services; products/services gifted or lent for use; the sharing of discount codes or affiliate links for commission or other commercial benefits.

 The labelling rules apply to all content used to promote a brand or a product, including posts, images and videos. Examples of commercial content include advertising of third party or own brand products, reviews resulting from a benefit, discount codes and affiliate links, sponsored competitions, brand ambassador roles and content regarding free products, services, trips event invites or experiences.

Accurate labelling

For accurate labelling of content, the CCPC recommends the use of clear ‘primary’ and ‘secondary advertisement labels’.

‘Primary advertisement labels’, which every commercial content should use at least one, include #Ad (or #Fógra in Irish), platform provided label like “Paid Partnership” for Instagram or “Promotional Content” for TikTok, or #gifted (or #Féirín in Irish) for unsolicited products. In addition to these primary labels, the CCPC recommends using secondary labels, where appropriate, depending on the commercial relationship, such as #Collaboration, #BrandAmbassador, #OwnBrand, #Affiliate or #Sponsored. The labels should be prominently displayed on any content, preferably at the start of any text block, and not hidden in order to reduce the risk of customers overlooking them.

Prohibited commercial practices under the 2007 Act

Under the 2007 Act, a trader cannot use editorial content in the media to promote a product - if a trader has paid for that promotion - if it is not made clear that the promotion is a paid promotion, whether in the content itself or in any oral, written, visual or descriptive representation in the promotion. It is an offence liable on conviction on indictment or on summary conviction.

The 2007 Act prohibits misleading commercial practices, including false or deceptive advertising. A practice will be misleading if it fails to identify the commercial intent of the practice. In practice, this means that influencers must ensure that their posts are truthful and not misleading to their followers and viewers. The obligation to ensure that a commercial nature is not concealed means that any posts which an influencer is making on behalf of a brand must be clearly labelled as an advertisement.

In addition to rules around labelling commercial content, brands and influencers should also be mindful of specific obligations relating to advertising to children as well as the advertisement of health, beauty and alcoholic beverages.

Lack of clarity around paid promotions

The compliance notice issued to O’Driscoll explained that Zerofit Europe Limited had paid him to promote a product but that the story post had failed to clearly and adequately disclose that promotion. O’Driscoll was deemed to have acted in violation the 2007 Act for using editorial content online to promote a product and not making clear that the promotion is a paid promotion.

This serves as a timely reminder for other influencers to review their current commercial practices and ensure these adhere to the requirements as contravention of prohibited or misleading commercial practices amounts to an offence and can lead to fines and other penalties.

The CCPC Guidance, issued in 2023, sets out a helpful step plan which brands and influencers can follow in order to identify their respective labelling obligations.

Enforcement

The ASAI’s Code of Standards outlines ways in which advertisers, including influencers, should act to ensure that they are compliant with all competition and consumer protection legislation, including the 2007 Act. The ASAI also reviews complaints from any individual or organisation who believes that a marketing communication may be in violation of its code. Having reviewed any flagged communication, the ASAI can recommend the removal or amendment of the communication or post. The outcome of any review is also made available on the ASAI website and published in the media.

An example of the ASAI complaints process in action was seen recently when five complaints were upheld against fitness influencer Siobhan O'Hagan for failing to properly disclose advertising content on her Instagram account. The complaints involved posts where O'Hagan either incorrectly labelled or did not label the content as advertisements, including promotions for her podcast, Emma Mattress, Califia Farms, Wild health and beauty products, and The Hut Group clothing items. The ASAI ruled that future content must be accurately labelled to comply with advertising regulations, and the story attracted some media attention within the state. The ASAI has a social media influencer reporting tool whereby the public can submit anonymous complaints about influencers and brands. 

While the ASAI itself does not enjoy any direct enforcement powers, the CCPC does. The CCPC has the authority to impose administrative fines on undertakings that breach consumer law, as well as initiate criminal proceedings. A person guilty of an offence under the 2007 Act is liable on summary conviction to a fine not exceeding €4,000 or imprisonment for a term not exceeding six months upon their first conviction, or on any subsequent summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months. These penalties make it clear that non-compliance with consumer law can have serious consequences for influencers who act in violation of their obligations in the world of social media advertising.

Failure to comply with these guidelines and codes can lead to serious legal repercussions as well as damage one's reputation. Influencers have a profound impact on shaping consumer purchasing behaviours. Therefore, it is vital that commercial content is clearly identifiable, ensuring transparency and trust among consumers. 

It is likely that CCPC’s recent notices represent a shift in enforcement actions taken against influencers in Ireland, potentially mirrored across the EU. A 2024 study conducted by the EU Commission examining social media posts from influencers across 22 member states, Norway, and Iceland found that nearly all influencers posted commercial content, but only 20% systematically disclosed this as advertising. As a result, 358 influencers have been earmarked for further investigation and will be contacted by national authorities.

Social media endorsements are increasingly attracting scrutiny by consumer protection enforcement agencies in various jurisdictions. Often national competition authorities are also the primary consumer protection enforcer. In the UK, the Competition and Markets Authority (CMA) published its own consumer protection law guidance on social media endorsements back in November 2022.The CMA’s consumer protection enforcement powers have substantially increased in April with the commencement of the new UK consumer protection regime meaning the CMA can directly impose substantial fines on businesses and individuals for unfair commercial practices, without taking court action.  This includes where the business or individual is located outside the UK provided that the ‘commercial practice’ is ‘directed to’ consumers in the UK.  The CMA can also cooperate with its international counterparts, such as the CCPC in Ireland, in respect of relevant consumer protection law or other investigations.

It is more crucial than ever for influencers, as well as brands, to fully understand the regulatory obligations and risks that they must navigate when entering this space.

Co-written by Aiden Daly of Pinsent Masons.