Our Korean Desk 
Our German Desk A recent decision by New Zealand’s Advertising Standards Authority (“ASA”) concerning a sponsored Instagram story posted by a well-recognised New Zealand personality, serves to remind all parties to advertisements, including advertisers, agencies, the media and influencers, of the need to ensure advertising is clearly identified as such to its audience.
Heineken Beer Advertisement
The advertisement in question involved a promotional video sponsored by DB Breweries Limited, showing Art Green, star of the first season of reality television show “The Bachelor New Zealand”, holding a Heineken beer and nominating his friends. The video was posted on Art Green’s Instagram story, a feature which allows Instagram users to share photos and videos in a slideshow format.
Although the video was accompanied by the hashtag “#sp”, tagged “@heineken_NZ” and featured Heineken campaign logo messaging, a complaint was made to the ASA on the basis that “#sp” was not sufficiently clear enough to indicate that the content had been paid for.
Guidance provided by the ASA on the identification of advertisements allows for some flexibility on ensuring advertising is sufficiently identified as such. An identifier such as #Sponsored or #Promoted is not mandatory.
The advertiser felt that it was likely that the audience would understand that the content was an advertisement. However, the content was removed from Instagram and the matter was settled.
The complaint highlights issues around the use of social media influencers to promote products or services, particularly in relation to lack of visibility surrounding the sponsored nature of influencer advertising. A key concern in this context is the application of rule 2(a) of the Advertising Standards Code, which prescribes that all advertisements must be identified as such.
Identifying an Advertisement
If content falls within the intentionally broad definition of “advertisement” under the Advertising Standards Code, rule 2(a) of the code requires that it must be obvious to, and well understood by, the audience that they are engaging with an advertisement. This applies irrespective of the form of the advertisement or the platform where it appears.
Accordingly, where an influencer fails to sufficiently disclose advertiser-controlled content, this may cause the advertiser to be in breach of the Advertising Standards Code. Although it is usually the advertiser who has primary responsibility for complying with the ASA codes, the ASA guidance also sets out that others involved, such as agencies, media and influencers, also have an obligation to abide by its codes and are responsible for ensuring the audience is aware they are engaging with an advertisement.
Ultimately, whether an advertisement is clearly identified to the audience will depend on a number of factors. While specific identifiers are not mandatory, they may assist in ensuring that advertising content is adequately identified. The nature of the identifier used and how it is perceived by the audience in the context of the platform used will be relevant considerations.
If you are an influencer and would like further information on compliance with the ASA codes, are using influencers to promote your products or services or would like specific legal advice in relation to a proposed advertising campaign in New Zealand, please get in touch with our Business Advice Team.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
