How the U.K. and U.S. Differ in Their Treatment of Influencers

Americans sometimes look admiringly at the U.K. After all, Britain is the colonial power that gave birth to these United States. Brexit and football hooliganism aside, the Brits often are seen as more civilized than their American cousins.

"More civilized" isn’t how we’d describe the penalties Britain’s Competition and Markets Authority (CMA) brandished the other day. The CMA is investigating influencers, warning them that if they don’t disclose fully their relationship with the brands they endorse on social media, they could do a stint in chokey. That’s very old British slang for jail, or what in Britain is called gaol; a word derived from the Norman French. You might recall the Normans inhabited the island nation after invading it in the 11th century.

But back in present time, the CMA told celebrity influencers they could serve up to two years’ time in jail should they fail to clean up their “misleading” social posts. CMA said in a statement yesterday that the celebs’ posts weren’t clearly marked as paid advertisements.

Formal Commitments

Here's where we would apply the term "civil" to Britain. CMA released a statement saying it had “secured formal commitments from 16 celebrities to ensure they will now say clearly if they have been paid or received any gifts or loans of products which they endorse” on social.

And even more civility: CMA added in a statement that it’s not “made a finding on whether the influencers’ practices have breached consumer law.” All the influencers, it added, “cooperated… [and] volunteered to make changes to their practices.” Serve up to two years in jail or affix #AD to your social post; it wasn’t a difficult decision.

The 16 influencers who promised to play nice included some big names, such as singers/songwriters Ellie Goulding and Rita Ora (pictured). Also included in the 16 are models Alexa Chung and Rosie Huntington-Whiteley.

Communicators who work with influencers on this side of the pond recognize the CMA’s counterpart in the former colonies is the Federal Trade Commission (FTC). During the past few years, it too has whacked celebrity influencers for failing to adequately disclose ties to brands they endorse on social. Most of FTC's blame has landed on brands.

But the gravity of the FTC’s warnings can’t match the CMA’s brand of hurt. The CMA missive has “more teeth as violations of the U.K.’s disclosure law may result in two years jail time,” says attorney Allison Fitzpatrick, a partner at Davis & Gilbert LLP.

Judicious Jail

Fitzpatrick earns her living making sure influencers and brands complying with FTC regulations. Even she considers two years in jail “a severe penalty" in such cases. She hopes the CMA “wields its authority judiciously.” CMA should use jail only “under extreme circumstances, where there is evidence of consumer fraud and real consumer harm,” she adds.

Influencers who violate FTC regulations “would likely face an enforcement action," Fitzpatrick says. In addition, they'd have to settle allegations through "comprehensive disclosure, monitoring and record keeping requirements.”  And, of course, "they would be subject to bad publicity and media scrutiny.”

A Takeaway

An important takeaway: As influencer marketing expands beyond national borders, “influencers need to remember that they must comply with the disclosure laws in the specific countries to which they are directing their endorsements,” says Fitzpatrick.  Similarly, foreign influencers whose posts are aimed at the U.S. market must “include disclosures that comply with U.S. law.”

The CMA’s press release included five footnotes. A press release containing not one but five footnotes? That’s got to be the definition of civility.

Seth Arenstein is editor of PR News.  Follow him: @skarenstein