We all know that brands like Adidas, Nike, Fenty and Dior partner up with social media influencers who have credibility in a particular industry and a large following to promote the brand to their followers. The influencer gets paid in cash or kind and the brand in return receives a personal advertisement to thousands of people directly in its target market.

For example, clothing brands gift free items to celebrities or fashion bloggers hoping they will post photographs on social media of themselves wearing the items while tagging the brand. Or hotels send influencers on holidays overseas for free with the idea that the blogger will do a write up and post pictures of the experience.

The United States of America’s Federal Trade Commission, published very strict regulations on these situations – the relationship between advertiser and endorser must be disclosed in a clear manner. For example, you will often see Kim Kardashian posting “Thank you #jetluxlife” or Lewis Hamilton posting a fashion shot with “@pumaperformance #nevergiveup”. They also said that using hashtags like “#sponsored”, “#advertisement” or “#ambassador” will also be sufficient.

In South Africa, our regulators are silent for these types of relationships. Social media influencers in South Africa seem to have it easier than their United States counterparts as we do not have strict regulations that set out how your posts should look if you are a brand ambassador or reviewing a product in return for a free holiday or free sneakers. So, what is our social media influencer’s position when it comes to endorsing brands or indirectly adverting?

We need to look to the Consumer Protection Act 68 of 2008 (“CPA”) and the Advertising Standards Authority’s Code of Advertising Practice (“ASA Code”) for the answers. Both of these pieces of legislation set general standards relating to advertising of products/services to ensure the public is not misled any way.

Both the definitions of “advertising” and “advertisement” in the CPA and ASA Code include advertising by using social media. When bloggers or influencers post on social media about products/services, it could be seen as advertisements – at the end of the day, the intention is to market, advertise and promote the products/services on behalf of the brand.

The CPA requires that advertising must be fair and reasonable. Marketing may not suggest a false or misleading representation of the products/services. The ASA Code requires truthfulness and honesty in advertising.

The question then remains: Is a paid-for advertisement which is not clearly labelled as such misleading to the public?

The CPA and ASA Code do not specifically deal with influencers marketing for brands on social media, but the ASA Code requires that “advertisements should be clearly distinguishable as such whatever their form and whatever the medium used”. Further, in electronic media, you should clearly distinguish between normal content and advertising. Where there is a possibility of confusion, advertising should be identified in a “manner acceptable to the ASA”.

Our regulations most likely envision similar disclosures as the USA’s Federal Trade Commission – wording that clearly identifies a post as advertising content.

In our opinion, social media influencers should rather be safe than sorry! If your post is challenged at the consumer tribunal or the Advertising Standards Authority, you would need to show that regular consumers in South Africa clearly understood that the wording used in your post explained your relationship with the brand clearly and fully.

Either way, any form of compensation, in cash or free products/services, will trigger the need to disclose the relationship with the brand. Ensure your posts contain an indication that it is an advertisement, for example using “#sponsored” or “advertisement” or “sponsored_content”. This makes it clear that you are in a partnership with the brand.

If you want to find out more, or need advice on this topic, feel free to contact our Social Media Law Department!