While the creative possibilities may be exciting, the legal considerations are complex: deploying any form of artificial character in your advertising means navigating a patchwork of advertising rules, intellectual property laws and data protection regulations. In this Long Read we explore some of the key issues to consider.
You may need to disclose that the influencer isn’t a real person. Whilst there isn’t a specific rule under UK law which requires brands to disclose that an influencer is AI-generated (simply because your influencer is AI-generated) failing to do so may be classed as a misleading omission under Consumer Protection laws if omitting that information is likely to mislead consumers and influence their decision to purchase the product. The advert, and the impression it creates, will need to be assessed to determine whether a disclosure is necessary.
You may need to make it clear that the content is advertising (i.e., with #ad). This may be the case even if the posts originate from your brand channel but, the most likely scenario when this will apply is where the AI influencer appears in advertising distributed through third-party space or in content that looks like independent influencer content. The content will need to be analysed to test whether, without the disclosure, the average consumer would immediately recognise the content as advertising. If not, #ad or another equally prominent advertising disclosure should be included.
You may need to label the content as AI generated or AI manipulated. If the advert may be made available to individuals in EU member states, then you will need to consider whether the transparency obligations under the EU AI Act apply. The key question will be whether the content meets the criteria of a deepfake (as set out in the Act) and the use of the AI influencer and what they do, say and look like will be taken into account here.
Finally, other labels may also need to be added if the platform or media on which the advert will be published requires you to disclose the existence of the AI influencer. Platforms often have their own rules regarding the use and labelling of AI and these can sometimes be stricter than the legal requirements – so always check these before posting.
Sector specific advertising restrictions will apply to the campaign in the usual way (for example, the UK Cosmetics Regulation and the CAP Code for all non-broadcast advertising) meaning, just like any other advert, your ad must not be misleading.
The use of an AI influencer may heighten the risk of the ad being misleading. For example, does the character purport to be a genuine customer and give a personal testimonial based on real experience? Alternatively, is the AI influencer content purporting to display a particular result or effect of a product? If so, this will raise concerns under consumer protection and advertising laws.
Please get in touch with our Advertising & Marketing team if you are considering using a virtual influencer in your advertising and would like to discuss how to manage the legal risks.
Authored by Fiona Hartwell and Esmé Briggs
