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28 February 2017

Vlogging: the legal issues

The latest Sunday Times Rich List (“List”) reminds us that “vlogging” is no longer the realm of teenage wannabes but rather a platform for all ages (albeit typically the under-30s) from which, if successful, you can build a prosperous career.

PewDiePie, number 49 on this year’s List, has an estimated fortune of £14 million while 24 year old Brighton sweetheart Zoella bought her first house last summer following the success of her lifestyle vlog which currently has an enviable 10.5 million subscribers.

Using vloggers is a great way for brands to exhibit their latest products particularly to younger audiences but caution must be taken to ensure that you stay on the right side of the law.

Advertising

Certain unfair practices are prohibited under The Consumer Protection from Unfair Trading Regulations 2008. Prohibited practices include the use of editorial content to promote a brand where that business has paid for the promotion without making that clear.

The Advertising Standards Authority (“ASA”) regulates television and radio advertising under the Broadcasting Committee of Advertising Practice (“BCAP”) Code and nearly all other forms of advertising (e.g. press, online) under the Committee of Advertising Practice (“CAP”) Code. The guiding principles in both cases are similar: advertising should be legal, decent, honest and truthful, be prepared with a sense of responsibility to consumers and society and not mislead, cause harm or serious or widespread offence.

The BCAP Code and the CAP Code are not laws and there are limits to the action which the ASA can take – it does not have the ability to impose financial penalties other than through reference to other bodies such as the Trading Standards or Ofcom albeit the potential reputational damage following an investigation by the ASA is unquantifiable.

In August 2015 CAP issued guidance for vloggers which clearly set out how and when advertising rules apply to vlogs. CAP’s guidance follows a 2014 adjudication by the ASA in which a number of vlogs were found to be misleading - it was not clear to consumers that the vlogs were adverts or contained paid-for content before they engaged with the content.

Collaborations between vloggers and brands typically involve one of two structures:

  1. the production of a video by the brand which is published on the brand’s social media pages and/website which features a vlogger. This would be considered a marketing communication but would not be an advertorial; and
  2. the production of a video in the style associated with the vlogger but with the content of that video being controlled by the brand.  This would constitute an advertorial.

Where content is not controlled by the vlogger and is produced in consideration for payment or payment in kind (including freebies and samples) then that content must be clearly labelled as an advertisement.

The following steps should be taken to ensure advertorials do not fall foul of the ASA’s rules:

  • Make the disclosure early. A consumer should know they are looking at an advert prior to opening the relevant video. Finding out that something is an advert after selecting it is not sufficient. Including “ad”, “advertorial” or “ad feature” in the video title is a simple way to ensure this.
  • Make the disclosure clear. Use of phrases like “in collaboration with”, “with thanks to” and “supported by” should be avoided.   Simpler terms like “ad” should be used instead.
  • Make it visible. Many people click from one video to another using the thumbnails that appear on the sidebar of relevant websites. Including an advertisement disclosure on the video itself/the information about the video will not be sufficiently clear. As above, make sure the video title itself contains the “ad” reference.
  • Don’t forget: using a celebrity vlogger will often draw attention to the brand and the advert. As a result you should ensure that the content of the advertisement is responsible and that the campaign complies with ASA standards.
Other considerations

Contract: It is best practice to ensure that a contract is in place between the vlogger and the brand. Some important provisions to consider include the extent of any exclusivity, reputation management/morality clauses and options to renew. It is also a good idea to obtain written confirmation from the vlogger that the campaign will not cut across any of his/her other sponsorship or endorsement contracts. Many celebrities and high profile vloggers will have exclusivity clauses in their other sponsorship contracts.

Data protection: Vloggers may be the data controller of their subscribers’ or online followers’ personal data. As such, vloggers should be registered with the Information Commissioners Office as a data controller and ensure they have consent before processing their followers’ personal data in any way. Businesses should be careful in requesting access to any such personal data keeping in mind that personal data that is obtained without the requisite consent is worth very little and may result in fines or other penalties.

Substantiation: As with all adverts, if a vlogger makes a claim in a vlog beyond something very generic, for example "I think it looks great", the advertiser must be able to substantiate the claim, and prove that it is not misleading or dishonest.

Minors: Using vloggers is a good way to advertise to younger audience. The ASA’s rules around marketing to minors are very clear and you should make sure that your content is appropriate and does not fall foul of those rules.

Conclusion

The important thing to remember when it comes to using vloggers to promote your brand is to make sure that you are upfront and transparent in your messaging. The ASA repeatedly reminds us that consumers should not have to search around for information or act as detectives – where content is an advert or contains paid-for endorsements or content it should be very clear.


This article was written by Caroline Swain, Associate.

For more information please contact Caroline on +44 (0)20 7203 5158 or at caroline.swain@crsblaw.com.

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