Do athletes have to tell us when their posts are #sponsored?
Social media influencers still fall in grey area of advertising rules
It's subtle. You may not have even noticed it. Just a small hashtag athletes are using to declare when a social media post is part of a larger relationship with a company — an acknowledgment that what you're seeing is tied to a paid sponsorship.
The practice has become more common with American athletes and social media influencers, and Canadians seem to be following suit. Tennis star Eugenie Bouchard and snowboarder Mark McMorris are among those Canadian athletes who have recently tagged posts with the telltale #ad or #sponsored.
Let's do this. 💪🏼😄😈 <a href="https://twitter.com/hashtag/sponsoredAthlete?src=hash">#sponsoredAthlete</a> <a href="https://twitter.com/hashtag/TeamUSANA?src=hash">#TeamUSANA</a> <a href="https://twitter.com/hashtag/USANAlifestyle?src=hash">#USANAlifestyle</a> <a href="https://twitter.com/USANAinc">@USANAinc</a> <a href="https://t.co/zUwPXzsnrg">pic.twitter.com/zUwPXzsnrg</a>—@geniebouchard
It's the legal world winding its way into athlete partnerships, but for now the rules seem more grey than black and white.
"There aren't any specific rules or guidance by [Canada's] Competition Bureau that look at social media influencers," says Jim Dinning, a partner at Davies Ward Phillips & Vineberg LLP, a firm specializing in competition law and information technology. "But technically, the legislation is broad enough to capture any deceptive advertising practice. Any information shared that isn't an independent view that influences a person's buying decision should be clearly and accurately labeled as advertising."
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In October, Advertising Standards Canada (ASC) updated their guidelines to require online influencers based in Canada to disclose their paid advertisements. Since the ASC is a not-for-profit self-regulatory body for the advertising industry they have no legal recourse for penalties.
But here's the thing: unlike most spaces where advertising appears, social media isn't bound by the same jurisdictional limitations. A post by an American athlete is as easily viewed by a Canadian audience and vice versa. The only social media endorsement guidelines are those recently released by the U.S. Federal Trade Commission, and they provide no information as to how broadly those regulations would apply.
"Jurisdiction is still unclear," says Dinning. "Would a Canadian influencer posting in Canada but with followers in the U.S. cause an issue with the FTC? We don't know. There aren't any clear answers."
According to the FTC, their guidelines are not regulations, so there aren't any civil penalties. However the FTC does have the power to investigate the advertisers to see if they have been deceptive in their promotion under the FTC Act.
'Small fish in a big sea'
So what's a Canadian athlete to do? Social channels have become a means for those without traditional media audiences to provide value to sponsors and broaden the fan base for both themselves and their sport. As Olympic ski cross medallist Kelsey Serwa says, "The goal is to have a social feed catch on."
But does every post mentioning a sponsor need to be disclosed as an advertisement?
Serwa and teammate Brittany Phelan have taken to social feeds to showcase their creative "Wacky Workout Wednesday" video segments. They just launched season two of their funky, fun, collaborative exercises that showcase their strength, agility and teamwork in unconventional ways.
Episode 7 of this seasons <a href="https://twitter.com/hashtag/wackyworkoutwednesday?src=hash">#wackyworkoutwednesday</a> w/ <a href="https://twitter.com/britt_phelan">@britt_phelan</a> is here, so just roll with it would ya 👌🏼<a href="https://twitter.com/TeamCanada">@TeamCanada</a> <a href="https://twitter.com/Alpine_Canada">@Alpine_Canada</a> <a href="https://t.co/Caw1r7IXVB">pic.twitter.com/Caw1r7IXVB</a>—@kelseyserwa
The series could be a corporate partner's dream for product integration, but so far the corporate support is limited to reposts by their mutual sponsor, Elan skis. That simple corporate affiliation is arguably enough to require FTC disclosure.
But is that reaching too far?
"I feel like we are still small fish in a big sea. We aren't looking to sell anything," Serwa says. "Britt was in the grocery store in Whistler and overheard a little girl on crutches point us out. She told her mom that now that she has crutches she can do the wacky crutch workout I did when I was recovering from my knee surgery.
"That's why we do it. That's reward enough."
Though it's unlikely the FTC will come knocking on Serwa and Phelan's door, it might be time for the Competition Bureau to provide some social-media specific guidelines. Canadian athletes need their own set of rules on advertising compliance in the social sphere and, more importantly, an idea of how the Canadian jurisdictional borders will be drawn.