A Sweet Deal?

Do New Zealand’s Influencer Regulations Apply to Anglers?

Everyone loves getting a sweet deal on their fly fishing and camping gear. Some lucky fishers even get sent free stuff to test, review, or even promote. Many share their haul on Instagram and Facebook.

Sometimes you’re not sure if they got it for free, or if they paid full price like you have to. You might be able to guess which brands they are being sponsored by from their consistent use of #brandtags. But maybe they’re just proud of their kit?

Those with loads of followers and subscribers often get real cash to promote commercial brands. I know this first-hand. Earlier this year I produced the collateral that secured tens of thousands of US dollars and pro-bono gear from a swag of fly fishing brands, helicopter operators and camping brands for one New Zealand influencer (I’ll share the tale of this wag in another story; it’s a doozy).

For decades, I’ve been involved on the other side of the fence, working with many brands to develop and support their influencer promotions. As someone who gets sent a bit of gear to use and review myself, I’ve been reticent to post my generally positive findings on my own social media platforms. That’s because, for the past year, there has been a legal requirement to identify this as an advertisement.

This might be a surprise to New Zealand’s astute fly fishing industry business leaders and key opinion leaders, and if you need an excuse for missing this change in New Zealand’s Advertising Standards Code, well, it arrived at a similar time to Covid-19. However, since its release (the code, not the Covid) there’s been a swath of high profile media stories and most legal firms have published advisory articles online.

Anyway, from this new fishing 2021 season onwards, I’ve decided to promote some of the stuff I’ve received. Despite this content comprising my honest, no-holds-barred gear reviews, I’m going to be labelling these posts as promotional content to make it clear they are ‘advertisements’, at least as defined by New Zealand’s advertising officialdom. This is a good thing. It might protect me in future from having to take posts down, pay a big fine, and inadvertently cause a big fine for the genuinely kind company folks who sent me the free or discounted booty (#thankyouall).

This won’t affect many of my posts. And even if I didn’t take this action, my few ‘promotional content’ posts might never be noticed by any officials or officious people. Labelling my posts will identify me as an advertiser. Is this bad. I mean just because I got it free or at a substantial discount, does that mean any positive review is shonky? Maybe the reverse? My opinion might even be trusted more because I’m being open and transparent about my #gift. That’s for the angling readers, viewers, or listeners to decide, I guess. No different for any others’ posts. The rules are the same for all advertisers and if we’re all following the rules, it’s a level playing field for everyone.

What Influencer Regulations?

What rules am I talking about, you might ask?

We all know of someone who promotes fly fishing brands on their ‘gram or Facebook and doesn’t yet tag their promotional content as adverts. Unfortunately, since September 2020, this has become a riskier business for both the promoter and the brand being promoted.

After changes were made to the Advertising Standards Code and launched on 14^th September 2020, influencers’ posts may be deemed to be advertisements – and if they not adequately labelled as such, both the individual, and the brand or brand’s representatives in New Zealand, may now be penalised. The fines are eye-wateringly high – up to NZ$200,000 for the individual, and up to NZ$600,000 for the local company representing the brand on the other side of the transaction.

Now let’s be clear. I’m not mentioning this to pot other anglers who I believe provide a useful service to us all in reviewing, recommending, and providing wise counsel to newcomers to our beloved and gentle sport of fly fishing. I’m simply suggesting what I’ll be doing. Sure, as a community we should respect and comply with the laws of the land to avoid any of us being censured. But I’m no lawyer and please don’t shoot the messenger. Far better to check it out for yourself, get some advice, and make your own decisions – just as I am. You do you.

In essence, the regulations state that if you receive any payment, or free goods, or even significantly discounted goods such as at or near cost, or if you provide an affiliate code which you receive any commission from – and you post about these goods on Instagram, Facebook, or discuss these goods on YouTube ­– these posts or reviews are advertisements.

Even if the company representing the brands has no control over the content produced by you, the advertiser, it’s still an advertisement. Apparently because it could be misleading to consumers; the people who buy fishing gear might be misled into thinking they got some helpful and independent advice from an online fishing buddy, but they may have been served a modern-day ‘advert’ from someone who gained financially from the exchange in some small, indirect way. Anecdotally, I’ve found this to be true. Chats with other anglers have been illuminating. Some had no idea the ‘names’ on social media giving them seemingly trusted advice, actually got that gear for free or for ~50% off and didn’t disclose their commercial relationships.

The regulations are very broad, but need to be complied with. If someone breached our fishing regs, and sprayed it all over their social media pages, the howls of outrage would be heard loudly. There have already been several high profile complaints and rulings by the Advertising Standards Authority in respect of these new regulations. It’s only a matter of time before it hits our local fly fishing industry. The claims of indignance and injustice are likely to be the loudest noise!

For those reading this from outside our legal jurisdiction, Australia has implemented similar regulations in February 2021 with A$500,000 maximum fines per breach of consumer law for an individual and a whopping A$10 million for a business. Influencers in Australia are being pulled up, so early compliance as well as rectifying past posts, is prudent if you think you might be breaching those laws. Best to check your country if you’re from further afield.

In New Zealand, the Inland Revenue also has these influencer/advertisers in its sights. Influencers receiving products or money in exchange for promotion may have to pay tax on the value of those goods received. Enough said.

Luckily, compliance is a simple matter.

What is Promotional Content?

The ASA has published much-needed Influencer Guidelines to help ensure advertising is clearly identified. These will help you determine how to address any historical posts and as an aid in publishing future promotional content. Whilst many instances will be in a ‘grey’ untested area, much of the local fly fishing influencer-led product-related advertising content is just that. It’s advertising.

The ASA definition of ‘advertising’ is very broad and includes any content that is controlled directly or indirectly by an advertiser for payment. ‘Payment’ is also very broad and includes receiving free or heavily discounted products or services, potentially even discounts of more than what other buyers in the same position could secure in exchange for content or promotion. An ‘influencer’ is someone who uses their own organically grown audience to provide a platform for advertising.

If a quasi-commercial relationship can be established between the influencer/advertiser and the brand (through retailer, distributor, brand licensee or brand owner, it may be considered that the content you are promoting is an advertisement.

If you received a free rod and gave it a fair review, it might not be an advert per se. But if you regularly receive discounted or free gear or have a history of posting positive news and #hashtags promoting a particular brand or brands, your posts will probably be perceived to be an advertisement and could lead to a complaint. The complaint then may or may not be upheld.

This is the crux of the issue. The law seeks to ensure consumers of your content are not misled in any way. An individual complaint, or the broader filing of a complaint with multiple instances of potential breaches, will be looked at by the ASA’s Complaints Board (made up of people with similar expertise and experience as myself) who will determine their decision, their recommendations and any pecuniary or other remedies.

How do we address this?

For influencers, decide whether you are or are not in this camp. If you received a free rod for example, and you said good things about it, perhaps even showed a photo of it on your blog, social media platform or channel, you probably need to ensure that your post is clearly labelled as an advertisement. If the company who gave you the free rod, also shared your content on their own social media platform, they will also need to ensure you have complied with the regulations and that they adhere to the Advertising Standards Code too.

If you are an influencer, just adding a #collab or #advert or #gifted (of course we both know you are) or indeed any #hashtag isn’t enough on its own, but it’s a good place to start. So do include hashtags such as these in your overall strategy to comply.

Perhaps start your post copy off with ‘ADVERTISEMENT:’ to make it abundantly clear. Use labels and hashtags such as #workingwith[insertbrandhere] and #freesample or #ambassador immediately below or within your copy (not buried in the first comment below the post). Label every post, story, reel, or YouTube segment that contains advertising or promotional content, or any other content that could be perceived as such. Mention that you got the gear free and that this is a paid promotion if you are laying down a voiceover track or presenting directly to camera in the field.

Brand owners or distributors should also provide firm guidelines to your brand ambassadors, key opinions leaders (KOLs), influencers or any fishing mates you provide free or cheap tackle to or pay to represent your brands. Their compliance may be more important to your commercial reputation, and future profitability, than you realise.

In a worst case scenario, a complaint might comprise many posts from several or more advertisers representing your brands and, albeit unlikely, each could incur a separate fine. A best scenario if any complaint is upheld is that your company will be censured with your name published, a requirement to remove all offending posts for you and your influencer (who will also be censured), the outcome will be publicly used by the media as a test case example, and you’ll end up adopting the correct approach eventually. First time around and you’ll get off lightly, but repeat offences are likely to generate financial fines. It seems more professional to prepare and adopt a firm policy now if you haven’t in the past year since the regulations were enacted.

What about Professional Guides?

The regulations are no different for those who guide as a profession and are also deemed to be influencers. More so, it is anticipated that the proposed Guide Licence will dictate that licence holders follow New Zealand laws and government regulations.

Making changes to your social media postings now will ensure compliance ahead of the anticipated introduction of this new system, but in any case, breaching the Fair Trading Act and the Advertising Standards Code will likely, at some point, put you in front of the Advertising Standards Authority (ASA) Complaints Board who can apply maximum fines of $200,000 for individuals and $600,000 for companies. It will also generate a lot of negative media attention within our community.

Act now.

Not doing anything might not be the right decision. Read up on the regulatory changes. Talk to the brands you represent, or influencers who represent you. Review your own past posts since 14 September 2020 (or those of your ambassadors if you are a brand representative reading this article) and have a think about the implications if a complaint was filed against you.

For some who read this, it’s perhaps worth the effort to edit any offending posts (for Facebook), delete any contentious Instagram posts, ask your distributor/retailer/influencer to do the same, and put in place your own policy for deciding and highlighting future promotional or advertising content. Then crack on with refilling your fly boxes ahead of the new season starting. Hey, like most laws, this is only a big issue if you’re breaking it!

For everyone potentially affected by this, please – I’m just another fisherman so don’t take any of this as gospel. It’s just a quick recap of my own investigations. Just as you wouldn’t listen to me about what fly to tie on, please feel free to make your own call on what to do now you’ve been made aware of the regulatory changes.

In between backcountry angling sorties, Southflyfisher (@southflyfisher) spent a few decades in senior advertising/e-commerce roles and in advertising industry governance positions that involved regular, always positive, exchanges with the fine people of the Advertising Standards Authority and the New Zealand Commerce Commission. He wants to remain on good terms with them.

PREPARED BY SOUTHFLYFISHER, SEPTEMBER 2021

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