Let's get this out of the way first: we love Kathryn Turner. We love the product development videos. We love the behind-the-scenes insight. We love that M&S appears to have somehow developed an entire content strategy around making me want to buy extra virgin olive oil lobster crisps I had no intention of buying ten minutes earlier.
Like much of the UK, we are firmly in the Kathryn Turner fan club.
But behind the cookies and endlessly viral food launches lies an interesting regulatory question: “when does employee-generated content become advertising?” and more importantly, “when does it need to be disclosed as such?”
The rise of the employee creator
Brands have poured budgets into third party influencers for years. Now, they are increasingly turning the camera on their own employees.
For example: in the fourth decade of his career, Frank Gysbrechts, Group Chief Financial Officer of Le Pain Quotidien, recently found himself starring in a viral video that racked up more than 10 million views on Instagram. The video caption:
“An influencer wanted us to pay €2,000 to film themselves having our profiterole and coffee… so here’s our global CFO doing it for free.”
Gysbrechts takes an uninhibited bite of a large profiterole, wipes a spot of chocolate from his nose and nods in satisfaction.
Although the CFO seems surprised by his sudden celebrity, no doubt this is exactly what the marketing department had planned. Having struck gold, they swiftly followed up with more Frank focused content.
M&S and Le Pain Quotidien are not the only ones jumping on this trend. Starbucks recently created an official TikTok ‘Creator Network’, enabling employee creators to “participate more directly in the creator economy through content opportunities and ad revenue sharing.”
Another familiar high street name, Gap, has also recently widened its existing creator network to include employees, “inviting the people closest to its brands to participate in a new form of advocacy rooted in personal style, product love and authentic connection.”
What does any of this have to do with the law, you might ask?
The success of this sort of content has prompted debate about whether it should be labelled as advertising. At first glance, it might seem like a novel issue, but it isn't. The Advertising Standards Authority (ASA) has been shouting about this for years.
In the new edition of its Influencers’ guide to making clear that ads are ads, published on 23 October 2026, the ASA sets out a helpful flowchart designed to help creators decide “Is my content an ad that needs to be disclosed?”
The first question the flowchart poses is “are you an ‘influencer posting content referring to a product, service or brand etc., including a brand you own, on your social media channel(s)?”
This can be a difficult question to answer… I wonder what Frank would say? After his 15 minutes of Instagram fame, ought he now to regard himself as an influencer? Whatever his answer, the Le Pain Quotidien content would, on the face of it, appear to be in the clear because it was posted on the brand’s own channels rather than his personal account.
Kathryn Turner’s content, by contrast, is posted on what looks like her own TikTok account. While it may be difficult for her to answer the first question confidently, the ASA’s flowchart includes an additional question intended to capture these scenarios: “Are you commercially connected to the brand in any other way, eg an owner, employee, shareholder, director, creative adviser, brand ambassador, or have a position in the company?”. Bingo! This presumably means that if she is an influencer, her TikTok videos should include some kind of up-front disclosure that they are advertising.
It is also important to consider if it is clear that the person making the content is an employee as, under the Digital Markets Competition and Consumer Act, it is an offence to present yourself as a disinterested consumer when in fact you work for the business that you are promoting. So, as well as a disclosure that the content is advertising, it is important that that person’s employment status is made clear or, if it is not, that there is a specific disclosure to that effect. This might be necessary even if the employee appears on their employer brand’s own channels.
When and why to enter into a more formal relationship with an employee influencer
For those businesses that do want to harness employees and encourage them to act as influencers there are many issues to work through in addition to disclosures needed under advertising regulations. Others include:
Strategic & reputational considerations: To what extent do you want to monitor or influence what an employee posts? Do you need more details about social media use in company policies?
Claims: Advertising law will apply to the all the claims made about your products (eg health claims and comparative claims) so you might wish to give employees guidance on what claims can and cannot be made.
Data protection: There will be data protection issues to work through if you wish to monitor content employees post on personal accounts.
Intellectual property: Who owns the employee generated content?
Employment law: Are an employee’s social media activities part of their work duties, or something they do in their spare time? Are they paid extra for producing this content? Does the income generated by social media content belong to the employer or the employee and who should pay tax on it?
Failing to consider these issues early on can lead to legal disputes later. The American wedding dress designer Hayley Paige, for instance, had a long-running dispute with her former employer over the ownership of an Instagram account with 1.1m followers. This might have been avoided if the parties involved had sat down and had a conversation as the platform started to become more successful.
Despite the potential difficulties, there are two key reasons why it might make sense for brands to jump on the employee influencer trend:
It’s cheaper
It may be perceived as more authentic, as employees are more likely to have genuine knowledge of your brand
From Mills & Reeve’s perspective, you might imagine that this only comes up in relation to client advice. Well, you would be wrong! Lawyers and law firms are getting into the social media influencer game too. A Bristol based legal marketing company publishes a popular ranking of the top 100 ‘Legal LinkedInfluencers’, a list in which Mills & Reeve employees have appeared several times albeit (sadly) none at the time of writing.
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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.