Rivers, Agency, Sentience

'Rivers as living beings: rights in law, but no rights to water?' by Erin O’Donnell in (2021) Griffith Law Review comments 

Since 2017, some of the most beloved and iconic rivers in the world have been recognised in law as legal persons and/or living entities, with a range of legal rights and protections. These profound legal changes can transform the relationship between people and rivers, and are the result of ongoing leadership from Indigenous peoples and environmental advocates. This paper uses a comparative analysis of the legal and/or living personhood of rivers and lakes in Aotearoa New Zealand, India, Bangladesh, Colombia to identify the legal status of specific rivers, and highlight the disturbing trend of recognising rivers as legal persons and/or living entities whilst also denying rivers the right to flow. Rather than empowering rivers in law to resist existential threats, the new legal status of rivers may thus make it even more difficult to manage rivers to prevent their degradation and loss. This paper highlights an ‘extinction problem’ for rivers that environmental law has exacerbated, by recognising new non-human living beings whilst simultaneously denying them some of the specific legal rights they need to remain in existence. The paper also shows how a pluralist analysis of the status of rivers can help to identify some potential ways to address this problem.

O'Donnell argues 

Rivers and wetlands are some of the most threatened ecosystems on the planet. Since 2017, some of the most beloved and iconic rivers and lakes in the world have been recognised in law as legal persons and/or living entities, with a range of legal rights and protections. These profound legal changes allow the law to ‘see’ complex systems as legal subjects, and may enable us to harness the power of environmental law to prevent their future extinction. But does the recognition of rivers in law as legal persons or living beings actually help to save them? 

The recognition of complex, landscape scale systems as legal and/or living beings represents one of the biggest structural changes in environmental law in decades. UN Special Rapporteur on human rights and the environment, David Boyd, described legal rights of nature as a ‘legal revolution’ that could help to level the playing field between humans and nature. More profoundly, the recognition of rivers legal and/or living beings is also often grounded in Indigenous peoples’ cosmologies and laws, which can lead to more pluralist environmental laws as well as the opportunity to transform the relationship between people and rivers in colonial settler states. However, the new legal frameworks which give rivers rights also tend to deny the new river beings the right to control their own lifeblood: the water which flows between their banks. 

Water extraction for drinking, irrigation, mining, and energy generation is a key driver of poor river health, but the new governance arrangements for the living rivers have all left the existing rights to use water from the river in place. Even worse, recognition of rivers as legal persons can entrench an adversarial narrative, in which our willingness to protect rivers is eroded, and replaced by a zero-sum, transactional relationship in which there are clear winners and losers. Rather than empowering rivers in law to resist their own existential threats, these new legal arrangements may ultimately make it even more difficult to prevent the degradation and loss of rivers. 

In this paper, I begin by examining the multitude of ways in which rivers are recognised as legal rights holders or living entities in law. These differences establish the legal rights and powers of the rivers, as well as the foundation for the next phase of the human relationship with rivers. The UN Secretary General noted in 2019 that the emerging ‘Earth-centred paradigm [of environmental law] guided by the oldest jurisprudential traditions of humankind is inherently pluralistic’, and when examining the question of rivers as living beings and legal persons, a pluralist perspective is essential to overcome the shortcomings of Western legal theories of personhood, which still struggle to recognise that natural entities can be legal persons. More profoundly, the recognition of rivers, lakes, mountains, animals, and all of nature as legal subjects is often the result of Western legal frameworks adopting and translating concepts from the laws of Indigenous peoples. However, without deep, respectful engagement, such translations can also involve a re-interpretation (or appropriation) of Indigenous laws that may obscure or undermine the rights of Indigenous peoples. 

Secondly, I consider the specific legal and living personhood of rivers based on comparative analysis between leading international examples of riverine personhood (in Aotearoa New Zealand, India, Bangladesh, and Colombia) and two Australian examples that depend on living entity status rather than legal rights. These rivers have been defined in law in multiple ways, but one consistent trend across all the examples of ‘living rivers’ is that their legal rights do not explicitly include rights to water. 

I then consider the question of how extinction can apply to rivers, and how the recent construction of rivers as living beings could exacerbate extinction risks. In doing so, I apply a pluralist understanding of environmental protection, reflecting the laws of both Indigenous peoples and settler colonial states. As stated by Poelina et al, recognition of rivers as living beings with a right to life ‘is grounded in ancient First Law (Traditional Law, Customary Law, or Aboriginal Law) which promotes the holistic natural laws for managing the balance of life.’ Based on the evidence from the rivers, I argue that ‘extinction’ can and does apply to rivers, and that the construction of rivers as legal and/or living beings can increase this risk in key ways. 

Lastly, I explore potential ways to address the extinction problem that environmental law has exacerbated by recognising rivers as legal and/or living beings, whilst simultaneously denying them the specific legal rights they need. This discussion further demonstrates the power of a pluralist approach to environmental law, and help to frame a future legal and policy agenda riverine protection.

'Ghost twitter in Indigenous Australia: Sentience, agency, and ontological difference' by Francesca Merlan in (2020) 10(1) HAU: Journal of Ethnographic Theory comments 

By distinguishing between attributions of sentience and agency we begin to take crucial analytical steps to consider ontological and cosmological differences between groups. Scholars in New Animist and Actor-Network Theory camps sometimes expound broadly generalized notions of agency, thus overlooking the ways in which characterizations of different kinds of beings—and the implications of these characterizations—may apply to aspects of environment and change historically. In Australia there has been debate about the “sentience” of the country as understood by Indigenous Australians. In a broader Australian public culture, there has come about in the last four decades or so an “etherealized” apprehension of Indigenous relations to landscape, which has privileged attention to certain kinds of cosmogenic being (that is, “Dreamings” as world founding agencies). Considering Australian Aboriginal practices and descriptions of spirit, human, other-than-human figures, and sacralized countryside, I take the view that there is incommensurability between Indigenous and non-Indigenous experiences of environment as sentient. Drawing on both my field experience with Indigenous people in North Australia and the broader Australianist ethnographic record, I discuss the many other kinds of being that populate and animate the countryside, showing a wide range of beings and forces. Three themes of continental distribution stand out: continuities between life and death; human-animal ambiguity; and communicative connectivities among life-forms. All these were elaborated in a way of life integral with its surroundings. The article considers change over time to such understandings, reduction in the range of life-forms, and what this may involve.

Sovereign Citizens

In State of New South Wales v Hardy [2021] NSWSC 323 Harrison J has considered orders against Christopher Hardy pursuant to the Terrorism (High Risk) Offenders Act 2017 (NSW), of interest in relation to sovereign citizen studies and 3D printing. 

The judgment states 

Mr Hardy is 48 years old with no significant criminal history prior to his commission of several offences in March and May 2017 that gave rise to the original Extended Supervision Order. 

On 3 March 2017 staff arrived at the Charlestown parliamentary office of local (opposition) member for NSW State Parliament Ms Jodie Harrison. On opening the door, staff located two envelopes situated on the office entrance floor. Both envelopes were addressed as follows: "To the Minister You are in TREASON, you will be hung [sic] until you are dead No Mercy, No Prisoners You are scum." 

Inside each of the envelopes was material printed from the internet website www.peoplesmandate.iinet.net.au. This material included writings to the effect that the Commonwealth of Australia is a corporation, controlled by foreign corporations, a doctrine consistent with the beliefs of the Sovereign Citizen Movement. 

A few months later, on 2 May 2017, at the request of Mr Hardy's landlord, police conducted a welfare check on him at his business premises. This search occurred in the context of a dispute between Mr Hardy and his landlord about mould, an issue with which Mr Hardy had become and remains obsessively fixated. In the course of that welfare check, and later warrant search and seizure action, some prohibited weapons were located at Mr Hardy’s business premises including nun-chucks, a slingshot with ball bearings, a replica pistol, a large number of large decorative knives, long torches/batons and a 3D printer. There was in addition voluminous print and electronic material evincing anti-government sentiment (indicating a strong attachment to the Sovereign Citizen Movement) and the infliction of injury and death in military contexts, including manuals on how to make booby-traps and explosives. 

Fingerprints on the envelopes located in March 2017 were subsequently linked to Mr Hardy. Mr Hardy was arrested, charged with the index offending (possessing an unregistered firearm; possessing prohibited weapons without a permit, and sending the document threatening death to Ms Harrison MP), and released on bail. In September 2017, after failing to appear at Court, Mr Hardy's bail was revoked. 

In December 2017, while in custody awaiting the charges for the index offending to be finalised, Mr Hardy was served by NSW Police with Firearms and Weapons Prohibition Orders. Police attached to the Fixated Persons Investigations Unit also searched his residence where a commercial grade pressure cooker and a USB were observed. Later inquiries suggest the pressure cooker had been purchased by Mr Hardy in November 2016. In February 2017 he had accessed a video on YouTube entitled "See the difference between pipe bombs and pressure cooker bombs". Material seized on 3 May 2017 included printed instructions relating to creating an explosive device using a pressure cooker. 

In February 2018, Mr Hardy pleaded guilty to offences relating to the threatening letter and the weapons and firearm possession, but later denied responsibility for sending the letter, a denial that he maintains. He received sentences totalling an aggregate of 16 months imprisonment, commencing on 19 September 2017, with a total non-parole period of 12 months. The day before Mr Hardy was due for release on parole on 19 September 2018, his statutory parole order was revoked by the State Parole Authority. 

In October 2018 police executed a search warrant at Mr Hardy's residence. A USB and the 3D printer previously seen at Mr Hardy's business premises were seized. The USB contained 411 digital blueprints for the 3D printing and manufacture of 12 firearms and replica firearms, parts or non-firing ammunition. The blueprint material had been put onto the USB before Mr Hardy's initial arrest in May 2017 and corresponded with the contents of his desktop computer seized from his business premises in May 2017. 

Expert examination of the 3D printer concluded it could produce physical parts from digital blueprints, although the device did not appear to have been used for any significant duration or to create any significant number of objects. 

On a different 3D printer, but utilising the same principles of technology as the 3D printer seized from Mr Hardy's premises, police produced physical models from a selection of digital blueprints taken from the USB. 

At a preliminary hearing for the original Extended Supervision Order application in December 2018, and again at the final hearing in April 2019, Mr Hardy was assessed by Button J as an eligible offender under the Act on the basis of the threatening envelopes sent by him in March 2017. His Honour considered that his conduct amounted to a statement advocating support for violent extremism, thus rendering him a "NSW terrorism activity offender" pursuant to s 10 of the Act. 

On his release from custody on 31 January 2019, Mr Hardy was subject to an Interim Supervision Order following the completion of his original sentence on 18 January 2019 and his release on bail for the blueprint offences. His Honour imposed a two-year Extended Supervision Order with comprehensive conditions, commencing on 29 April 2019. 

After multiple listings of the 2017 blueprint offences matter for contested hearing, Mr Hardy ultimately pleaded guilty in December 2020 to a representative count for possessing all 411 blueprints relating to 12 firearms and replica firearms. For the 2017 blueprint offence Mr Hardy is now serving a further sentence of 18 months imprisonment, to be served by way of Intensive Corrections Order, which incorporates a community work order. The sentence was imposed on 11 December 2020 and will expire on 10 June 2022. 

Mr Hardy also remains subject to the Firearms Prohibition Order and Weapons Prohibition Order made on 22 November 2017. These orders have no time limit. In addition to prohibiting him from acquiring, possessing or using a firearm, prohibited weapon or firearm part or ammunition, these orders also provide for the search and seizure of him and premises and vehicles under his control, occupation or management.

In Clarke v Scanlon [2021] VSC 19 Croucher J states 

 On 10 January 2021, Ms Clarke was arrested and charged with eleven offences, including recklessly causing injury to, and threatening to kill, her partner’s father and recklessly causing injury to a police officer. 

In short, it is alleged that Ms Clarke, aged 38, assaulted, and threatened to kill, Mark Harris, aged 61. This occurred at Mr Harris’s property in The Basin, where his wife lived with their son Christopher Harris (who is Ms Clarke’s partner) and Ms Clarke. Mr Harris’s wife’s elderly parents lived there too. It is also alleged that, when police arrived some time later, Ms Clarke assaulted Leading Senior Constable Tanya Lavin by kicking her to the knee during the course of an arrest. Indeed, so out of control was Ms Clarke’s behaviour that police considered it necessary to tackle her to the ground and to administer capsicum spray to quell her. 

When in police custody later that day, Ms Clarke was uncommunicative and, it seems, in no fit state to apply for bail. Accordingly, no such application was made at that time. The next day, however, Ms Clarke did apply for bail, but her application was refused by the magistrate. As a result, she has been in custody for the last seventeen days. 

In order to be granted bail, Ms Clarke must establish a compelling reason justifying bail. Sensibly, however, her application in this Court is not opposed by the prosecution. Nor, given the conditions of bail proposed, do the prosecution submit that, if bailed, there is an unacceptable risk that Ms Clarke would engage in any of the behaviours proscribed in the Bail Act 1977 (Vic). 

Ms Clarke’s behaviour and utterances at and around the time of the alleged offending and to mental health practitioners since give rise to serious concerns about her mental health. In my view, she should not be in custody any longer. Instead, she should be released on bail so that she may be examined more closely by mental health authorities pursuant to an inpatient assessment order (“IAO”) under the Mental Health Act 2014 (Vic) (“the MHA”) and, if considered necessary, treated as well. As will be seen, such steps have been put in place in the event of her release. 

Further, Ms Clarke, who has no criminal history, upon her discharge from the strictures of an IAO, will be able to live with her partner at his property in a country town several hours’ travel from Mr Harris’s property. Happily, her partner is able to work from home, take her to any mental health or other appointments and care for her generally. 

Against that background, I am satisfied that several factors, in combination, establish compelling reasons why bail is justified. Chief among them are: (a) Ms Clarke’s parlous mental health at the time of the alleged offending; (b) that she is now subject to an IAO which will result in her being transported by ambulance to a designated mental health service for assessment; (c) that it is extremely unlikely that she would be imprisoned, if indeed she were ever convicted of any of the offences charged; and (d) that she has in place satisfactory arrangements for her care and accommodation after discharge from the IAO. 

Further, given the surrounding circumstances, including the conditions of bail agreed by the parties, I am not satisfied that there is an unacceptable risk that Ms Clarke would engage in any of the behaviours proscribed by s 4E(1) of the Bail Act. 

Accordingly, bail should be granted. 

My more detailed and settled reasons for these conclusions follow. 

Alleged offending 

I turn first to a summary of the alleged offending. 

On 10 January 2021, at 11:40 a.m., Mr Harris attended his property at The Basin. He was there to do some maintenance on the house in order to prepare it for sale and to ask his son Christopher Harris, who had been living there with Ms Clarke for the past two years or so, to move their belongings for the purposes of the sale. 

A few minutes into the conversation, Ms Clarke burst into the room and yelled, “You have to do this legally.” She then struck Mr Harris (Snr) in the mouth with her left fist, causing his lip to split and bleed. Christopher Harris restrained her, but she also yelled at his father, multiple times, “I’ll kill you.” Mr Harris (Snr) left and reported the matter to local police. 

At 1:20 p.m., LSC Lavin and Constable Riley McGibbony attended the address for the purposes of arresting Ms Clarke. Mr Harris (Snr) met the police in the driveway and let them inside the house. They found Ms Clarke and Christopher Harris upstairs. LSC Lavin informed Ms Clarke that she was under arrest for recklessly causing injury to Mr Harris (Snr). Ms Clarke lunged towards LSC Lavin and pushed her out of the way. LSC Lavin then grabbed Ms Clarke to prevent her from falling down a flight of stairs. At the same time, Constable McGibbony deployed OC spray foam to the side of Ms Clarke’s face. 

Ms Clarke broke free and ran down the stairs towards the front door. Constable McGibbony gave chase and tackled her to the ground. The two police then tried to gain control of Ms Clarke, who was violently kicking out at both officers. During the arrest, Ms Clarke kicked LSC Lavin to the knee, causing bruising and pain. 

Once placed in handcuffs, Ms Clarke was given aftercare in respect of the OC foam. She was then taken to Knox Police Station. No formal interview was conducted as Ms Clarke was not considered fit to participate. 

Previous bail application 

As indicated earlier, when in police custody at the time of her arrest, Ms Clarke was uncommunicative and did not apply for bail, as she was in no fit state to do so. The next day, however, an application was made, but was refused by a magistrate. The court extract indicates that the magistrate was not satisfied that compelling reasons had been shown and was satisfied that there was an unacceptable risk that, if bailed, Ms Clarke would commit an offence or endanger the safety or welfare of any person. 

Mental health and other concerns and arrangements in place to address those concerns 

Concerns expressed in police summary 

In the police summary annexed to the affidavit filed in this Court on behalf of the respondent, it is alleged that Ms Clarke has said, among other things, that she is a sovereign citizen and that she does not acknowledge Victorian law, Victoria Police’s authority or the authority of the Victoria’s courts as Jesus is her only master. 

Interim FVO 

On the day of her arrest, an interim family violence intervention order was made against Ms Clarke and in favour of Mr Harris. That order has not been served yet. It contains standard conditions, including a prohibition on her being within five metres of Mr Harris or within 200 metres of his premises at The Basin. 

Previous IAO and mental health report 

In a report before this Court compiled by Constable Daniel Zerella, who describes himself as “the corroborator for this matter”, it is noted that Barrie Janson, who is a senior nurse with the Mental Health Advice and Response Service (“MHARS”) at Forensicare, made an IAO on 11 January 2021, the effect of which was that Ms Clarke would be transported to hospital, if she were released on bail that day. That IAO has now expired. 

Mr Janson also completed a mental health report on 11 January, which is before the Court. In the report, Mr Jason noted that the custodial staff reported bizarre behaviour and comments by Ms Clarke. He also said that Ms Clarke: (a) appeared guarded, hyper-vigilant and unwilling to be interviewed but started listening and engaging once he explained his role; (b) expressed religious and delusional themes; (c) said that she has a history as a survivalist and “prepper”; (d) said God has been communicating with her partner and her in their dreams, and that God had told them that they had to live at the home of her “in-laws”; (e) said that “end times” are coming and that there will be war and famine soon; and (f) presented as psychotic and delusional, with poor judgment and no insight. 

Mr Janson also observed that Ms Clarke was vulnerable, was not being treated (psychiatrically) and appeared to be resistant to such treatment.

In Busselton (WA) Magistrates Court  18-year-old sovereign citizen Phoebe Lee Bennett  has been convicted for speeding, having refused to confirm her name. The ABC reports that Bennett repeatedly objected during the proceedings and thanked secessionist group New Westralia.

Bennett made statements about "rebutting the presumptions of the court" but refused to confirm her name. 

Magistrate Linda Keane warned Ms Bennett that she would be deemed "absent" if she did not comply and that the matter could proceed without her. 

"I don't want to deny you speaking in court, Ms Bennett — if that is indeed your name," Magistrate Keane said. "But you have to confirm your identity." 

Phoebe Bennett accused the court of refusing to "accept the evidence". 

Bennett repeatedly said "we object" as prosecutor Karl Rep read out the allegation that she had been clocked speeding in her Holden Astra at 127 kilometres per hour in a 110kph zone near Busselton last year. 

Ms Bennett then attempted to read a statement about international conventions, but was ushered out of the court. "Let the record show that you will not accept evidence," Ms Bennett said. 

Phoebe Bennett says her appearance may mark the start of greater "accountability" in places like Busselton Magistrate's Court. Outside court Ms Bennett read a prepared statement in which she thanked her "attorney", apparently a citizen of "New Westralia", for his assistance. 

"I wish to thank the court for their understanding," Ms Bennett said. "I also wish to thank my attorney William Atherton from New Westralia for his guidance and support.

It is unclear whether Atherton's practitioner status was granted by the New Westralia theocratic secessionists or an Australian government. 

Surveillance

'Caveat Usor: Surveillance Capitalism as Epistemic Inequality' by Shoshana Zuboff in Kevin Werbach (ed) After the Digital Tornado (Cambridge University Press, 2020) comments 

 Epistemic rights are the cause of which privacy is the effect. The wholesale destruction of privacy during the first two decades of the digital century is the consequence of the unilateral nullification of elemental epistemic rights, as the leading surveillance capitalist corporations established unrivaled dominance over the totality of the world’s information now rendered in digital format. This political and human rights contest has been obfuscated to the point of invisibility, despite the fact that its outcome will define the moral and political milieu of our information civilization. 

The distribution of epistemic rights determines the degree of epistemic inequality, defined as unequal access to learning imposed by hidden mechanisms of information capture, production, analysis, and control. It is best exemplified in the fast-growing abyss between what people can know and what can be known about them. This new axis of social inequality does not reflect what we can earn but rather what we can learn. It represents a focal shift in social ordering from ownership of “the means of production” to ownership of “the production of meaning,” from the division of labor to the division of learning. 

Asymmetries of knowledge feed the progress of instrumentarian power as exclusive knowledge is translated through the networked layer of digital instrumentation to produce new capabilities of behavioral actuation at scale – influencing, tuning, herding, and modifying human behavior toward others’ commercial -- and political-- ends. The division of learning is both the ascendant principle of social order in the twenty-first century and already hostage to surveillance capital’s privileged position, empowered by its self-authorized ownership of human-generated data and its exclusive command of analysis and prediction capabilities. The result: Caveat usor. 

These conditions are best understood as the unauthorized privatization of the division of learning in society. Just as Durkheim warned of the subversion of the division of labor by the powerful forces of industrial capital a century ago, today’s successful prosecution of information warfare by surveillance capital against citizen-users exerts private power over the definitive principle of social order in our time. Epistemic inequality is the signature deformation of this epoch, as the pathologies of the division of learning infect society and undermine democracy. 

How do surveillance capitalists defend their dominance? What responses are required? Finally, the citizens’ paradox: Democracy is the ultimate target of this epistemic poison and its only antidote.

Influencers

The UK Advertising Standards Authority report Influencer Ad Disclosure on Social Media: A report into Influencers’ rate of compliance of ad disclosure on Instagram comments 

 With steadily rising complaints to the ASA about whether influencer ads are appropriately disclosed on social media, we proactively monitored a select group of influencers with whom we have previously been in contact about how to disclose content as advertising. We did this to establish their rate of compliance with rules which require ads to be obviously identifiable as such. 

The three week monitoring period focused on content on Instagram because complaints to the ASA about Influencer ad disclosure tended to be on this particular platform. The rules on ad disclosure apply to all platforms and media where influencers choose to engage in advertising. Our analysis of over 24,000 individual ‘Stories’, posts, IGTV and reels across 122 UK-based influencers revealed a disappointing overall rate of compliance with the rules on making it sufficiently clear when they were being paid to promote a product or service. 

We have therefore written to all of the Influencers we monitored and the main brands who had partnered with one or more of them. Brands are held equally responsible for failing to adequately disclose advertising content. 

We have also requested that the influencers provide an assurance of future compliance with the rules and will undertake monitoring to ensure that they comply – or face sanctions. 

What did we find? 

• Inconsistent disclosure across Stories - when a piece of ad content spans a number of consecutive Stories, unless it’s absolutely clear that this is part of the same posting, each Story must be disclosed as an ad. 

• Inconsistent disclosure across Stories, IGTV, Reels, posts – we noted instances where a post would be accurately disclosed as an ad but a corresponding Story, was not. 

• Visibility of ad labels – where Stories were labelled as ads, we noted labels were often in a small font, obscured by the platform architecture or otherwise difficult to spot; mainly due to being in a very similar colour to the background of the Story where it was placed. 

• Affiliate content is still an ad – we noted the use of #affiliate or #aff with no additional upfront disclosure; those labels are not likely to be enough on their own to disclose to users the advertising nature of the content. 

• Own-brand ads – Influencers should not rely on bios or past posts to make it clear to consumers that they are connected to a product. 

Both the CAP Code and the law require marketers to leave consumers in no doubt about when they are engaging with advertising, and this includes advertising on social media. This is not a new rule specific to social media, it is a rule that has been applied across all non- broadcast media via the CAP Code and the equivalent rules in the BCAP Code for broadcast media, for many years. The emergence of new platforms online has enabled new methods of incorporating marketing communications within and around editorial or other non-advertising content. However, our own Ad Labelling research and Ofcom research shows the difficulty that consumers have in distinguishing certain types of online ads from surrounding content. Clear and prominent disclosure is therefore essential; in short, it must be obvious to consumers before they read, ‘like’ or otherwise interact with content if it is a marketing communication. 

The ASA and CAP have invested significant resource and effort into helping the influencer marketing industry understand their responsibilities under the ad rules. On top of the numerous rulings the ASA has published on ad disclosure on social media, we have hosted an ‘Influencer Responsibility’ event and produced numerous pieces of advice online, including the ‘Influencers guide to making clear that ads are ads’ and a ‘cheat sheet’, specifically designed to help Love Islanders navigate the rules. 

In spite of the work already undertaken to help influencers stick to the rules, complaints to the ASA on this subject remain high: 2020 saw a 55% increase on 2019 in complaints received about influencers, from 1,979 to 3,144 individual complaints. 61% of those complaints in 2020 were about ad disclosure on Instagram. 

With influencer marketing continuing to grow as the popularity of social media apps increases due to consumers spending more time online, it is likely that the ASA will receive more complaints about this type of advertising. Our 2019 Annual Report demonstrated that complaints about influencer posts made up more than one quarter of all complaints about online media, with online media complaints making up just short of half of all the complaints made to the ASA in 2019. 

Influencer advertising is not new and whilst we’re heartened to see large elements of the industry maturing and disclosing ad content transparently, we continue to see far too many incidences of non-disclosure, which threaten to bring this marketing discipline into disrepute and breed distrust in consumers. Through easy to use CAP guidance for influencers on how to comply with the rules, there is simply no excuse for influencers not to make clear to consumers when content has been paid- for by a brand. 

The Code Rules 

The CAP Code applies in full to ads in all non-broadcast media, including digital platforms, such as Instagram, Facebook, YouTube, Snapchat, Twitter and TikTok. Many of these Code rules are underpinned by legislation, including the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). If an influencer fails to sufficiently disclose that a post is in fact marketing, then not only are they breaking the CAP Code, they – and the brand they’re working with – may well be breaking the law. The relevant ad disclosure rules of the Code state: We consider that, in most cases, the use of #ad (or similar) is the clearest way of communicating the commercial nature of advertising content, though using a platform’s own disclosure tools, such as Instagram’s Paid Partnership tool, can also help to distinguish advertising from other content. 

Monitoring 

In September 2020, CAP undertook a three week monitoring exercise to review the Instagram accounts of 122 UK-based influencers to assess whether advertising content was being properly disclosed. The focus was on Instagram Stories because complaints made to the ASA were predominantly about this platform and this particular platform feature, but we did also consider posts, reels and IGTV. We also understood that ad spend on Instagram Stories has also been increasing significantly. 

Monitored content was considered very likely to be advertising when it included a “push” to consumers towards a brand. This might include explicit reference to a discount code or a “swipe up” message, for example. Or, where the content was otherwise clearly linked to a specific product or service via traditional advertising references to price, benefits of product/service (with no corresponding negatives), highlighting of a brand, etc. Years of experience regulating complaints about influencer content have helped us to identify when the content is very likely to amount to undisclosed advertising. 

Influencers were primarily chosen on the basis of having been previously contacted about non-disclosure of advertising by the ASA, either in response to a complaint or via our self- initiated, proactive engagements with them on the matter. 

As part of that work, we identified a significant number of Stories that were likely to be ads that had not been disclosed as such. We assessed over 24,000 Stories and compliance rates were far below what we would expect. We categorised nearly one in four Stories as marketing and considered that only 35% of them were clearly labelled and obviously identifiable as advertising. 

Ads were largely found to fall into three sectors: Beauty, Clothing and Leisure. This is perhaps unsurprising to those who interact with Instagram on a daily basis and see posts, in their feeds, promoting make-up, fast-fashion, luxury brands and various trips to hotels, spas, and theme parks. 

However, in terms of following the rules, no sector stood out as having an acceptable rate of compliance when it came to labelling ads. This suggests that neither influencers nor the brands are taking enough care to ensure consumers know when influencer marketing is occurring.