New guidance on advertising rules for video bloggers in the UK


Posted By on 25/10/15 at 2:03 PM

The UK body responsible for writing and maintaining the UK Advertising Codes – the Committees of Advertising Practice (CAP) – recently released guidance for video bloggers (vloggers) about how and when advertising rules apply to their video blogs (vlogs).

The problem with vlogging and advertising

More than ever before, businesses are utilising the extensive reach of online bloggers and vloggers to market their products and services. This can be a very effective marketing strategy, as businesses can leverage off the vloggers’ existing relationship with their viewers and access otherwise hard-to-reach audiences.

Problems arise when vloggers are not clear about a commercial relationship existing between themselves and the business behind the goods or services they are spruiking. In these circumstances, consumers may be led to believe that what a vlogger says about a particular product is the vlogger’s own opinion, when the vlog’s content is actually controlled by the business producing the product.

Failing to disclose that a vlog is, in fact, an advertisement contravenes the requirement in the relevant UK Advertising Code that marketers and publishers ensure that any ads they create are clearly identifiable as marketing communications.

In May 2015, the UK Advertising Standards Authority (ASA) banned a vlog on the “Beauty Recommended” Youtube Channel for failing to make it clear it was a marketing communication controlled by Procter & Gamble, the US consumer goods company. ASA ruled consumers should have been made aware of the commercial nature of the vlog’s content prior to viewing the vlog. Further, terms such as ‘sponsored by’ and ‘brought to you by’ were not sufficient to explain the vlog was a marketing communication.

As a result of this and other similar rulings, vloggers began actively seeking help from CAP and ASA about what they need to do to comply with the Advertising Code. After consulting with marketers, advertising agencies and vloggers, CAP released the following guidance on 19 August 2015.

The guidance

The guidance lists eight scenarios in which businesses and vloggers might collaborate and provides practical advice about what vloggers need to do to ensure they comply with the Advertising Code’s requirements.

  1. Online marketing by a brand:

A business collaborates with a vlogger and makes a vlog about a product that is uploaded onto the business’ own social media channels.

This is likely to be a marketing communication covered by the Advertising Code. It is likely to be clear from the context that the vlog is a marketing communication, meaning no specific ‘ad’ label will be required.

  1. ‘Advertorial’ vlogs:

A vlog is created in the style of the vlogger, but the vlog’s content is decided by the business and the business has paid the vlogger.

Both the business and the blogger are responsible for making it clear to the audience that the vlog is an ad. Text in the vlog such as ‘ad’ or ‘ad feature’ is likely to be acceptable.

  1. Commercial breaks within vlogs:

Most of the vlog contains independent, non-paid for opinion, with a particular section dedicated to product promotion.

As long as it is clear when the ad component starts and ends, the other parts of the vlog (including its title) do not need to be labelled ‘ad’.

  1. Product placement:

The independent editorial content contains a commercial message (eg a make-up tutorial where a specific brand of brush is used).

The audience needs to be made aware that the brand paid for the vlogger to use its product. This could be done through onscreen text such as ‘product placement’ or the vlogger explaining that he/she has been paid to use the product in question.

  1. A vlogger’s video about their own product:

The sole content of the vlog is the vlogger’s own merchandise.

Although there is no third-party business involved here, it is still a marketing communication and the vlogger is responsible for claims made about the product/merchandise.

  1. Editorial video referring to vlogger’s products:

A vlogger promotes their own product within a broader, independent vlog.

So long as the marketing communication reference is clear in the context, no additional labelling is required.

  1. Sponsorship:

A business pays a vlogger to create a vlog, but has no control over its content.

The Code does not cover sponsorship, so the vlog would not need to be labelled as an ad.

  1. Free items:

A business sends a vlogger a free product without any conditions attached and the vlogger includes the product in his/her vlog.

This sort of PR activity does not fall under the Advertising Code (so long as the business genuinely has no control over the vlogger’s decision to include the product in the vlog).

The Australian context

No equivalent guidance dealing specifically with vlogging and its relationship with advertising rules and regulations has been produced in Australia.
However, the Australian Competition and Consumer Commission (ACCC) has produced a guideline for businesses and review platforms in relation to online reviews of businesses’ goods and services. Guiding Principle 1 of the guideline is that commercial relationships between businesses and reviewing platforms should be disclosed, so that unfair competitive advantages between competing reviewed businesses do not arise.

The guideline can be found here.

In December 2014, Australia Post received substantial criticism in the media for breaching the guidelines. Here, it was alleged that Australia Post paid social media influencers, through a third party talent management agency, to make favourable social media posts about its services without it or the social media influencers disclosing the commercial relationship.

The South Australian Tourism Commission came under fire in similar circumstances in April 2012.

In Australia, there is also the potential that a business, in failing to disclose its commercial relationship with a vlogger or reviewer, could contravene the misleading and deceptive conduct provisions of the Australian Consumer Law.

Given a lack of judicial consideration of this issue to date, it is difficult to suggest in what circumstances a business failing to disclose its commercial arrangement with a vlogger or social media influencer would constitute misleading and deceptive conduct.

What does this mean for you?

If you are planning to use a vlogger of social media influencer to market your goods or services, you need to think about whether you and the person spruiking the goods or services need to disclose the commercial relationship.

The CAP guidance provides good information about the different sorts of scenarios that may arise between a business and a vlogger and what should be done in these scenarios to ensure consumers are not mislead.

Ultimately, the takeaway message from the ACCC guideline – that commercial relationships should be disclosed in these circumstances – needs to be kept front of mind.

If you’ve got any questions or concerns regarding this, give us a call on (03) 9663 9877.

Naomi Stephens Paralegal

Naomi is a paralegal in the Competition Law & Regulatory Compliance team, focusing on marketing activations, advertising review and trade promotions compliance.  She joined KHQ after having spent... Read More