Has that image from your favorite fashion brand been photoshopped? Is that influencer been paid for that Instagram post? These are two questions that various government agencies and watchdogs have been asking with increasing frequency. In the U.S., the Federal Trade Commission has been eyeing up social media posts from some of the most heavily-followed individuals to ensure that all paid-for (or otherwise compensated) posts are declared as such. The same is true in the United Kingdom, where the British Advertising Standards Authority has taken to cracking down on the subject.
Even more recently, the Advertising Standards Authority of Ireland “(ASAI”) announced that is has introduced new guidance on the “Recognizability of Marketing Communications,” which is “aimed at ensuring Irish consumers are not misled by influencer marketing through online advertisements on blogs and social media websites.”
An independent self-regulatory body set up and financed by the advertising industry, the ASAI has held that “where celebrities or influencers are sponsored by brands or paid directly to promote a product, it must be clear these posts are marketing communications.”
To achieve this, the ASAI is requiring “the use of a clearly identifiable hashtags, such as #Ad. The chosen identifier must also be immediately included and clear from the beginning of the content. Disclaimers should be visible for consumers to see before they interact with / read the relevant material.” A disclaimer, for example, “below – the-fold on websites, in terms and conditions, or at the end of the marketing communication is not sufficient,” notes the ASIA.
The Rise of Photoshop Laws
Pushes for advertising transparency go further than the policing of sponsored posts, though. In addition to the requirement of clear disclosure of paid-for posts, the ASAI now requires that influencers, celebrities, and brands, alike, declare if an image has been “manipulated,” according to Orla Twomey, the CEO of the ASAI. Twomey stated that “if post-production techniques,” such as photoshop, are used on images that are serving as online advertisements – whether it be traditional ad campaigns or influencers’ sponsored posts – such manipulation “has to be declared.”
“It should be declared if the image has been physically altered and this disclaimer should be visible in the promotion material,” Twomey stated. This is in line with the ASAI’s Code of Standards for Advertising and Marketing Standards in Ireland (Section 4), which governs “Misleading Advertising.” According to the Code, “A marketing communication should not mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.”
The ASAI’s push towards transparency when it comes to edited imagery is not the first of its kind. In fact, it follows the passage and enactment of a French law last year requiring that fashion photos must bear a notification if they have been digitally altered to make a model's silhouette "narrower or wider.” It is worth noting that while the French law is very much in effect at the time being, it has not resulted in any noticeable disclosures to date.
In the time since the French photoshop law has come into effect, Paris-based fashion publications have released their monthly issues, and no shortage of brands have released their seasonal ad campaigns. None of these bear any “Photographie retouchée” (or “retouched photograph”) notifications that material alternations were in play, which raises the question of whether the brands are running afoul of the relatively recently-enacted law or if they have not made use of retouching that "has changed the physical appearance of models."
Much like the Federal Trade Commission and the British Advertising Standards Authority, which have both stated that they are, in fact, monitoring the disclosure practices of everyone from media companies and brands to celebrities and influencers, the ASAI says that it "has begun monitoring blogs and online channels including social media" to ensure that such disclosure requirements are being put into practice.