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Complying with the advertising regulations when engaging influencers

When a brand pays you to talk about their product in a video, the viewer must be made aware that what they are watching is an“advertorial” and not your unbiased opinion.

So what should be done to ensure consumers understand that what they are watching is an advert?

Viewers need to be made aware before they begin watching your video that it is an advertorial. Labelling the video as an “advert”, “ad feature”, “advertorial”, or something along those lines will be acceptable, but using words like “sponsored”, “supported by X” or “funded by X” will be insufficient as the consumer may be misled into thinking that you have full control over the content.

Recently, the Advertising Standards Agency (“ASA”) ruled on what was meant by having “control” over the content.

The channel “Global Cycling Network” (“GCN”) entered into a contract with Wahoo (UK) Ltd (“Wahoo”). The contract between the parties required GCN, in exchange for payment, to create a number of videos involving Wahoo products. In the videos, GCN were required to reference Wahoo products when they felt it was appropriate and to undertake an “unboxing” of a Wahoo product.

The ASA held that although Wahoo could not dictate the specific content or final edit of the video, the fact that they were paying GCN to discuss their products meant that GCN did not have full control over it, and therefore it was an “advertorial”. They also held that the wording “Thanks to our sponsors” in the description was insufficient notification to the consumers that what they were watching was in fact an advert.

What should you take from this?

Even if you decide what is said in the video and you edit the content yourself, in the eyes of the ASA, you still don’t have full control of the content if you are being paid (with money or gifts) to undertake various obligations within it. Making it clear that the content is an advert before the video begins is vital.

What are the consequences of non-compliance?

In the Wahoo case, the ASA directed that the videos must not appear in their current forms, and told GCN and Wahoo to ensure that the videos were obviously identifiable as marketing communications.

The ASA regulates the UK’s advertising through applying the CAP Code. One of the most significant consequences of failing to comply with the CAP Code is bad publicity. A vloggers reputation can be badly damaged if they are seen to be ignoring the rules designed to protect the public.

There are also a range of actions the ASA can take for non-compliance such as asking internet search websites to remove the vlogger’s content.

Ultimately, if a vlogger persistently breaks the advertising regulations, the ASA can refer them to other bodies for further action, such as Trading Standards. The highest sanctions available to Trading Standards include unlimited fines and prison sentences up to two years.

For more information, please contact Aurelia Butler-Ball in our Media and Entertainment team: Aurelia.Butler-Ball@irwinmitchell.com

Published: 22 January 2018

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  • Senior Associate Solicitor
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