A warning for vloggers

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The Advertising Standards Authority has warned video bloggers – vloggers – that they need to be clearer when they are accepting payment for promoting products.

The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) states that marketing communications must be obviously identifiable as such.  The Advertising Standards Authority (the ASA), which enforces the CAP Code, has issued notices to bloggers before reminding them of this.  For instance, in November 2013, the ASA said: “Put simply, a blogger who is given money to promote a product or service has to ensure readers are aware they’re being advertised to”.

It is permissible for bloggers to accept payment for advertising, the point is that they must spell out that this is advertising.

The ASA has now sharpened its focus and has sent a message to video bloggers(vloggers).  It did so following a ruling involving a series of YouTube videos published by vloggers referencing Oreo biscuits.  Although the video blogs ended with wording such as “Thanks to Oreo for making this video possible” the ASA considered that this was insufficient to make clear the marketing nature of the videos as they did not clearly indicate the existence of a commercial relationship between the advertiser and the vlogger (i.e. that the advertiser had paid for and enjoyed editorial control over the videos).  As the ads were on online video channels that were usually non-promotional, the commercial intent should have been made clear before the viewer clicked onto the content. The complaint that there had been a breach of the CAP Code was therefore upheld.

The message for vloggers is simple – when being paid to advertise a product you must disclose the fact that this is advertising and this must be made clear before viewers engage with the content.

The ASA has also made the point that the reputations of vloggers is at stake here.  It may be damaging to their reputation to be found to have hidden the fact that the content they are producing is paid for and controlled by an advertiser.  We have seen similar developments in the practice of online guest blogging – what used to be something of a badge of honour has become increasingly tarnished by an association with spam.  We have written separately on the practice of accepting payment for links.

Where the vlogger is a trader, the practice of not disclosing that a video blog is an advertisement, could be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs).  The CPRs prohibit misleading omissions by traders in their dealings with consumers.  This could well encompass the practice of presenting what appears to be a genuine opinion but is in fact a financially sponsored advertisement.  This could lead to enforcement action by Trading Standards and, following recent changes to the law, it is also possible for consumers to bring actions against traders for misleading practices where they can show they have suffered loss as a consequence.

A final point for vloggers is that if they are accepting money for favourable reviews, they should declare this to HMRC.  The Revenue have made no secret of their interest in pursuing undeclared income from blogging.

If you are a vlogger (or blogger) or an advertiser paying vloggers or bloggers and want to ensure that you do not fall foul of the CAP Code or the CPRs, please do not hesitate to contact Jeanette Burgess or Andrew Northage.