Recommendation 39

HM Government Acknowledged

1. We understand ‘virtual influencers’ are fictional, sometimes computer-generated people who typically have realistic characteristics, features and personalities of humans. The content they deliver is created by individuals, brands, agencies etc, who remain anonymous and faceless to the web-user. 2. The ASA has not received any complaints relating to virtual influencers. We are not aware of research that suggests that virtual influencers are causing advertising-related harm. 3. We understand the recommendation is for the ASA system to require the account of virtual influencers to be watermarked when the account is being used to advertise to web users. A recommendation to watermark the account of virtual influencers for purposes other than advertising would fall outside the advertising remit of the ASA system. 4. We understand two theoretical concerns are raised: i) the anonymous controller of the virtual influencer account is less likely to be deterred from non-compliance by ASA name-and-shame sanctions or other self-regulatory and statutory sanctions; and ii) a web user has the right to know the controller of the virtual influencer account. 5. On i) an advantage of the ASA system is that it can tackle non-compliance via the influencer and/or the brand being marketed and/or the platform; it is not reliant on remedying non- compliance via the influencer only or, in this case, via the controller of the virtual influencer account. If it considers it necessary to do so, the ASA system can work with third parties, including platforms, to seek to identify the contact details for the controller of the influencer account. 6. On ii) The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) requires ads, including influencer ads, to be obviously identifiable as such. This helps to ensure the consumer knows when they are being marketed to. If the presentation of an ad meets this test, for example, by use of an upfront and prominent ‘#ad’ label, it is not clear whether and, if so, how a consumer could be misled in all circumstances by the fact that the ad was communicated in a post by a virtual influencer; our rules allow us to assess whether it would be misleading in individual cases, however. The ASA system undertakes to consider any evidence presented to it of advertising-related harm arising from virtual influencers against the criteria set out in its Evidence-based Policy Making guidance (https://www.asa.org.uk/static/uploaded/ cb20c00f-b559-40a2-8b5677188511b45b.pdf). In the absence of such evidence, we do not have the basis to consider further, at this stage, the recommendation that virtual influencers should be watermarked when the account is being used to advertise to online users. 7. On ii) we also understand the Online Safety Bill may give Ofcom powers to consider the circumstances in which the use of virtual social media accounts (used by people, organisations etc. which conceal their identities) may lead to harm and, in such circumstances, the duty of care that may apply to the platform in scope of the Bill.