Background

In August 2015 the Committees of Advertising Practice (CAP) published new guidance for vloggers. The guidance aims to help vloggers understand how and when advertising rules apply to their vlogs. The guidance emphasises the need for vloggers to be upfront with their followers and to clearly signpost when they are advertising a product.

On-going guidance

On 29 January 2016 CAP launched part two of its eLearning module on misleading advertising. This module focusses on:

• Substantiation – advertisers must hold documentary evidence supporting all objective claims featured in an advert before the advert is run.
• Qualification – advertisers can use small print to clarify claims in adverts, but this must not be used to hide important information or in a way that contradicts the claims made by the advert.
• Endorsement and testimonials – endorsements and positive feedback can be used in adverts, but not in a way that could mislead consumers.

The launch of part two of the eLearning module is a good reminder of the fact that the CAP Code applies to a variety of different types of advertising, including vlogs.

Recap of the CAP guidance

The CAP guidance highlights a key rule of the CAP Code, which is that if content is controlled by the marketer, not the vlogger, and is written in exchange for payment (which could be a monetary payment or free items) then it is an advertisement feature and must be labelled as such (rule 2.4).

The CAP guidance for vloggers refers to advertorial vlogs, but also refers to a number of non-exhaustive vlogging scenarios to which the advertising rules apply. The scenarios set out in the guidance are:

• Online marketing by a brand;
• "Advertorial" vlogs;
• Commercial breaks within vlogs;
• Product placement;
• Vlogger's video about their own product;
• Editorial video referring to a vlogger's products;
• Sponsorship; and
• Free items.

The CAP guidance provides clear advice regarding how the CAP Code might apply to each scenario. Whilst the guidance does not specify exactly how a vlogger or advertiser should identify its vlogs as adverts, it is clear that this identification must be obvious and unambiguous. In particular, the identification must be clearly visible regardless of the device used to access the vlog.

The rules apply to advertisers and agencies as well as to vloggers. Advertisers and agencies must not ask vloggers to conceal the fact that they are advertising a product. Advertisers and agencies who ask vloggers to do this are asking them to break the advertising rules and potentially the law.

The CAP guidance emphasises the need for transparency from both brands and vloggers. The audience must be fully informed of the extent to which a vlog is a marketing communication. If this is not obvious from the context, vloggers and advertisers must label the vlog as an advert before the viewer accesses the content.

Other applicable law

As well as following the CAP Code, vloggers and advertisers must also comply with applicable consumer protection legislation. The Competition and Markets Authority (CMA) is one of the bodies responsible for enforcing consumer protection legislation. The CMA may therefore require vloggers and advertisers to disclose their commercial relationships.

This is particularly relevant in relation to sponsorship and free items. If a company sponsors a video but has no control over the content, this will not be covered by the CAP Code. The CAP Code would not therefore require the vlog to be labelled as an advert. In any event, vlogs which are sponsored usually make at least passing reference to the sponsor, so the audience should know who the sponsor is. The CMA would however expect the vlogger to tell their audience about the commercial relationship with its sponsor. The CAP guidance indicates that "having a nod to the sponsorship" would satisfy this requirement.

The CAP Code is unlikely to cover situations where a vlogger accepts an item sent by a company on the condition that it is reviewed (positively or negatively), provided that the company does not have any control over how the vlogger presents the review. The CMA would however expect companies and vloggers to tell consumers if the vlogger had accepted a free item provided that the vlogger talked about the item in their vlog.

As with the CAP Code, transparency and not misleading the audience is key. The CMA's general approach is that an audience watching a vlog needs to know whether a vlogger has an incentive (financial or otherwise) to talk about an item, and if so what that incentive is.

The CMA's 60-Second Summary to online endorsements can be accessed here.

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This article was written by Laura Bruin. For more information please contact Laura on +44 (0)20 7427 6415 or at laura.bruin@crsblaw.com