What every PR team, talent agency and brand marketer needs to know now

For the best part of a decade, professional content creators in the United Kingdom enjoyed something close to total autonomy. A bedroom YouTuber could move millions of pounds of inventory with a single sentence, recommend a product without disclosing how the recommendation came about, and accept luxury brand trips on terms nobody in a traditional advertising agency would have been allowed to agree to. The traditional advertisers, locked into the strict regulatory codes that have governed broadcast and print advertising for decades, watched it all happen with a fair amount of envy.

That period is over. The change has been swift, and many creators – along with the brands and agencies that work with them – are still operating as if the old rules apply.

This article is for the people who manage that risk: PR professionals, talent managers, marketing directors and in-house counsel at consumer brands. It sets out the legal framework as it stands today, the practices that will get you in trouble, and the steps it takes to keep both the creator and the brand on the right side of the law. It is general information, not specific legal advice – if you have a campaign in flight or an enforcement letter on your desk, please speak to one of our specialist lawyers before deciding what to do.

You are a trader, and your post is a transaction

The most important shift in the regulatory landscape is conceptual. Under the Consumer Protection from Unfair Trading Regulations and the regime built around them, the moment a creator accepts any incentive to endorse a product, the law treats them as a trader, acting for business purposes. Not a friend giving advice. Not a fan sharing a recommendation. A trader.

That has two immediate consequences. The first is that the same standards of professional diligence apply to a single creator as apply to a department store. The second is that any failure to identify the commercial nature of a post is a misleading omission – a category of offence that does not require anyone to actually be deceived, only that the average consumer might make a transactional decision they would not otherwise have made.

That phrase, transactional decision, is wider than people assume. It does not only mean buying the product. It includes clicking an affiliate link, visiting a brand’s website, or simply choosing to spend time watching a video on the basis of an apparently organic recommendation. The legal logic is rooted in behavioural economics. When a consumer knows a post is paid for, they apply a layer of healthy scepticism. An undisclosed endorsement bypasses that filter, and the law treats the bypass itself as the harm.

The moment you are incentivised to endorse something, you are acting for business purposes. The law treats your Instagram story the same way it treats a department store window.

The three regulators – and the new powers behind them

UK influencer marketing now sits inside an overlapping web of three enforcement bodies, each with its own remit.

The Advertising Standards Authority (ASA) is the front-line watchdog. It writes and enforces the CAP Code, the code governing non-broadcast advertising and direct and promotional marketing, and its job is to make sure ads are obvious, truthful and not misleading. The ASA polices the look and feel of the disclosure.

The Competition and Markets Authority (CMA) brings the heavier legal artillery. It enforces consumer protection law, and as of the Digital Markets, Competition and Consumers Act 2024 (the DMCC Act), it has the power to impose direct civil fines for breaches without taking anyone to court. The maximum penalty is 10% of a business’s or individual’s global turnover. For a creator running an LLC that turns over £1 million a year across brand deals, ad revenue and merchandise, a single non-compliant post can theoretically expose them to a £100,000 fine.

The Financial Conduct Authority (FCA) sits over a narrower but more dangerous slice of the market. Anyone discussing crypto, trading platforms, signals services or investments is in FCA territory, and the FCA’s reach is global. A creator sitting on a beach in Dubai, posting in English to a UK audience about a trading app, can be pursued for promoting financial products to British citizens without authorisation. The risk in that corner of the industry has crossed from civil to criminal.

The era of "I’m just a creator, I didn’t know the rules" has gone. Regulators now treat ignorance as no defence at all.

What counts as payment – which is to say, almost anything

The most common misconception in the creator economy is that an advertisement only exists when money changes hands. The legal definition of incentive is far wider. Anything of value triggers the rules: cash, affiliate commissions, free products, gifted holidays, the loan of a car, hospitality at a sporting event, VIP tickets, even unsolicited PR packages that arrive at the door uninvited. If the creator chooses to feature the item, the law applies.

The unsolicited gift rule is the one that produces the most resistance in client conversations. A creator did not ask for the parcel. They did not sign anything. They simply opened it, liked the contents, and posted a story. The regulator’s view is that this is precisely how a Trojan horse is supposed to work. A handwritten card and a beautifully wrapped box bypass the creator’s commercial defences with all the friction of a friendly gift, then deliver a payload of legal liability the moment the post goes live. The brand obtained promotional content without negotiating for it. The law treats that promotional content as advertising, with the same disclosure obligations as any other.

The next question brands tend to ask is whether the lack of a contract gets them off the hook. It does not. The ASA uses the concept of editorial control to determine whether a post is an advertisement, and the threshold is remarkably low. Suggesting a hashtag counts. Asking the creator not to mention competitors counts. Requiring a post within a particular month counts. So does a non-disparagement clause. Simply asking a creator not to say anything negative about the brand in future is sufficient editorial control to convert any related post into a regulated advertisement.

The 12-month rule, and why it follows you home

There is a particular trap door that catches creators with established brand relationships. The CMA’s settled position is that if there has been a commercial relationship – a paid campaign or an ambassadorship – within the previous twelve months, every subsequent post mentioning that brand needs to be disclosed as an advertisement, even if the specific post in question was not paid for and the creator bought the product themselves.

That captures a great many ordinary moments in a creator’s life. The dress they happened to throw on for dinner. The serum they have been using for years. The trainers a child gave them at Christmas. If the underlying brand relationship exists, the consumer has a right to know, because the relationship is material information. It changes how a reasonable person would weigh the recommendation.

The same logic applies to self-promotion. A creator launching a skincare line, a coffee company or an affiliate code is acting as a trader promoting their own goods. The fact that they are not paying themselves makes no difference. The disclosure obligation tracks the commercial nature of the post, not the direction of the cash.

How to disclose properly

The golden rule, set by both the ASA and the CMA, is that disclosures need to be immediate, prominent, obvious and upfront. The audience needs to know a post is an advertisement before they engage with it – not after they have tapped "see more", scrolled past thirty hashtags, or arrived at the bio.

The acceptable labels are tightly defined. "Ad", "Advert", "Advertising", "Advertisement" and "#ad" are the safe terms. Everything else is risky. The ASA has expressly ruled against "Collab", "Spon", "Gifted", "In association with", "#MyEdit", "Funded by" and the bare tagging of a brand handle. They have done so on the back of consumer research showing that these labels do not reliably tell the average consumer that the post is an advertisement. "Gifted" is technically accurate, but the public reads it as a present from a friend, not a marketing exchange between a corporation and a content creator. "AFF" for affiliate is also out – the public has no idea what it stands for.

Placement is where most violations occur. The label cannot sit beneath the "see more" fold. It cannot be buried in a wall of hashtags. White text on a white story background fails. Tiny transparent text in the corner of a video fails. The bio defence – the argument that the creator’s profile clearly says they are an ambassador for a particular brand – fails too. The ASA’s position is that posts now appear algorithmically on explore pages and embedded in third-party sites, divorced from the profile that produced them. Each piece of content has to stand on its own.

Platform tools, such as Instagram’s paid partnership tag, help. They do not, on their own, satisfy the law. If the white text of the tag is lost against a bright story background, the disclosure has failed even though the toggle was set. The safer approach is a belt-and-braces one. Use the platform tag and place a clear "#ad" at the very top of the caption or as a text overlay.

Enforcement in the wild – the case files

Theory becomes much sharper when illustrated. A short tour through recent ASA and FCA matters tells the story.

Lauren Goodger, formerly of The Only Way Is Essex, was paid roughly £2,275 for four Instagram posts promoting trading signals to her audience of more than 750,000 followers. The content claimed no experience was needed and promised consistent profits. By giving financial advice and promoting trading platforms without FCA authorisation. Several other reality television figures from Geordie Shore and Love Island admitted to illegally promoting high-risk financial products without authorisation or required risk warnings. This was not a civil slap on the wrist. It bordered on criminal liability for unlicensed financial promotion.

Binky Felstead of Made in Chelsea attended Wimbledon as a guest of Vodafone. There was no contract, no requirement to post, no payment. The brand simply provided tickets and hospitality, and the PR team suggested certain hashtags she could use if she happened to share her day. She did. The ASA upheld a complaint against the posts on two grounds: first, the tickets and hospitality were a commercial benefit of value; second, the suggested hashtags constituted editorial influence. A free day out had become a regulated advertisement.

Molly-Mae Hague, possibly the most commercially successful creator to come out of UK reality television, had an ASA complaint upheld over an Instagram post featuring a Pretty Little Thing dress. She had not been paid for the specific post. She had, however, an ongoing and very public ambassadorship deal with the brand. The 12-month halo rule did the rest. Every post featuring the brand’s clothing required a disclosure, regardless of the funding of the specific item.

Olivia Buckland tried the bio defence in respect of W7 Cosmetics. Her profile permanently identified her as an ambassador, so – she argued – an ad label on every individual post would clutter her captions. The ASA rejected the argument outright. Followers might encounter a single post in isolation through the explore page or a hashtag search, never seeing the bio at all. Each post stands alone.

The penalties go beyond a written ruling. The ASA operates a public name-and-shame register, on which non-compliant creators sit for at least three months, subject to enhanced monitoring. Where that fails to produce compliance, the ASA goes further. It has been known to buy targeted advertisements on the very platforms creators rely on, served directly to the creator’s own followers, identifying them by name as having been sanctioned for failing to declare ads. The state effectively initiates a counter-marketing campaign against the creator’s business.

Brands are not bystanders in any of this. UK law treats brand and creator as jointly responsible for an undisclosed ad. When a complaint is upheld, the ruling names both parties. In 2024 the ASA received over 3,500 complaints specifically about hidden influencer ads, dragging brands through the press alongside the creators they hired. Reputation-conscious advertisers respond defensively. A creator on the public register quickly finds that premium agencies and household-name advertisers will not work with them. Their pool of brand partners shrinks to the more poorly governed end of the market – exactly the partners least equipped to draft a compliant brief.

Algorithmic monitoring – the regulators are not waiting for complaints

The picture would be alarming enough if it depended on consumer complaints. It does not. The ASA has shifted to proactive systemic monitoring. In one of its recent sweeps, the regulator deployed software to monitor 122 UK-based Instagram accounts over three weeks and analysed roughly 24,000 individual pieces of content, including ephemeral stories that disappear within twenty-four hours. Of the content flagged as marketing, only around 35% was found to be compliant.

The CMA has applied parallel pressure to the platforms themselves. Meta has given binding commitments in respect of Instagram requiring the platform to detect and tackle hidden advertising at the system level. The compliance pincer is now closed: a regulator that can scan content algorithmically, a platform required to flag undisclosed commercial activity, and a fine regime that can reach 10% of global turnover. The probability of getting away with a hidden ad has dropped a long way.

The state has installed speed cameras every ten feet, and the penalty for being caught speeding is no longer a ticket. It is potentially ten percent of your global turnover.

The contract is the shield

In the early days of influencer marketing, an agreement was a single direct message. It is no longer fit for purpose. A modern influencer agreement is a properly drafted commercial contract that defines the deliverables, the payment structure, the intellectual property position and, importantly, requires compliance with the CAP Code and CMA guidance.

A well-drafted contract protects the creator from the brand’s bad ideas as much as it protects the brand. PR teams will sometimes propose terms that demand high editorial control while subtly nudging the creator to bury the disclosure for "authenticity". When that approach is later challenged, the brand’s instinct is to point at the creator and call them rogue. Indemnification clauses, mandatory compliance language and explicit acknowledgement that the creator is required to use prominent disclosures shift that risk back where it belongs.

Influencers worry about leverage. Pushing back on a global brand’s twenty-page contract with "my lawyer needs to review the CAP compliance clause" can feel career-limiting when you are mid-tier with 50,000 followers. The honest answer is that any brand that responds by pulling the deal is a brand whose campaign would have put the creator at risk in any event. A £5,000 fee that triggers a CMA fine and a place on the public register is not a deal. It is a liability event with a bad name on it.

The CGI competitor on the horizon

There is one further pressure on human creators that is worth flagging because it changes the strategic calculation. Virtual influencers – CGI characters such as Lil Miquela, Knox Frost and Lu do Magalu – are run by teams of designers, copywriters and marketers. From a brand’s perspective they are nearly perfect. They post in any time zone, they never renegotiate their day rate, they are not photographed leaving a nightclub at three in the morning, and they have no decade-old tweets waiting to be rediscovered. Most relevantly for this article, they say exactly what the legal team programmes them to say.

There is even a regulatory loophole that favours them. When a CGI creator breaches an advertising rule, the team behind the avatar is largely insulated from the reputational damage that destroys a human creator. There is no person to put on the public register. The DCMS committee has discussed mandatory watermarking so the public knows it is interacting with code rather than a human being, but the underlying point stands. Human creators who make themselves a compliance headache push brand budgets towards artificial alternatives that never make headlines.

The irony is sharp. The pursuit of authenticity through hidden advertisements is one of the trends most likely to push brands away from human creators altogether.

What this means in practice

The headline message for any business operating in this space is straightforward. Treat the creator as a regulated media business, because the law already does. Build disclosure into the brief, not as an afterthought. Use the fixed safe terms – "#ad" and its small family of variations. Make sure every piece of content can stand alone with its own clear label. Audit the past twelve months for halo-rule exposure. Put proper indemnification and compliance language into every contract. And if a campaign is in flight and there is any doubt about whether it will withstand scrutiny, take advice before, not after, the post goes live.

We work with creators, talent agencies, brand marketing teams and in-house counsel on exactly these questions, from contract review and pre-publication compliance to defending ASA complaints and CMA investigations. Our office is in Soho, right at the centre of the London advertising and PR ecosystem, and we see new versions of these issues every week.

Cohen Davis – internet law specialists, Soho, London.