Despite a prior commercial agreement between The Savoy and influencer Lydia Elise Millen concerning just Instagram posts in return for hotel stays, the ASA ruled that a TikTok post published around the same time, with similar content that related to the same hotel stay, came under the "ad" umbrella.
The post received complaints for not being obviously identifiable as a marketing communication.
Millen posted on TikTok in November 2022 about a stay for an “annual Christmas shopping trip”, inviting her followers to comment on their favourite of two outfits she tried on for a theatre night.
The influencer had a commercial relationship with The Savoy under a "Fairmont Ambassadorship" that included an agreement to post two Instagram stories per stay across two of her five stays at the hotel.
The stay featured in the TikTok post was part of the agreement, but Accor argued that only Instagram posts mentioning Accor brand Fairmont or associated hotels were covered by the terms.
Because the content appeared on TikTok, it was outside the agreement, and so was not paid for and could not be seen as an ad.
Millen’s representative pointed to her Instagram posts of the stay being labelled as ads. But the TikTok post did not show The Savoy and the content was not signed off by Fairmont as it was out of scope of the commercial agreement.
The ASA disagreed, saying the TikTok post being of similar content to the Instagram ad, and posted around the same time, was further exposure likely to benefit The Savoy.
“We considered that because it was so closely linked to the Instagram ad, and therefore linked to the ongoing commercial agreement between Ms Millen and Fairmont, it was also a marketing communication,” the watchdog said in its ruling, published on Wednesday (11 October).
Speaking to TTG, Marta Safin, a social media strategist and member of the Llama travel marketing collective, warned brands to “treat influencers as they would any other form of paid marketing”, adding that “a little bit of knowledge can save a lot of grief”.
“The use of influencers in travel marketing is only going to grow," said Safin. "Although still a relatively new form of marketing, its rapid evolution doesn’t mean controls don’t exist to protect the consumer – and this is another example of how enthusiasm can outpace regulations.”
Safin advised travel brands looking to use influencer marketing to educate themselves about “what is and isn’t permissible" within the current rules, and include this in the influencer’s brief to ensure they are clear on how they should comply when creating content.
“If the rules themselves are open to interpretation, read the case studies or get in touch with the ASA or an agency which specialises in working with Influencers to seek advice,” Safin advised.
Clampdown
The ruling is the latest in a string of influencer-related posts rapped by the ASA for not being clearly labelled as ads as the watchdog continues its clampdown on influencer marketing activity it finds to be misleading.
It has continuously warned that influencers failing to work within the rules will receive sanctions that include serving the worst offenders up to statutory authorities, and in June 2021 released a "name and shame" page for persistent rulebreakers.
Scott Guthrie, director general of the Influencer Marketing Trade Body, told TTG: “A challenge can arise when creators love the product or destination they’re being paid to promote so much they produce content beyond the deliverables they’re contracted to create. The influencer sees this as brand love and added value. Ad regulators, however, see this as content produced while within a commercial relationship.
“Happily, the fix is easy. Brands and creators need to understand that commercial relationships exist even if there was no obligation to post about free items or services received. If a commercial relationship exists then the influencer needs to declare the content as an ad."
