A recent ASA adjudication reminds businesses to keep an eye on influencer content and in particular to consider whether or not it falls within the ASA's definition of an advertorial. The adjudication gives some important clarity as to what constitutes 'control' in the context of ads.

According to the ASA influencer content will be an advertorial if:

• the marketer has control over the content; and
• the influencer is paid (in any manner, financially or otherwise) to produce the content.

In the case of vlogs, consumers must be made aware prior to clicking on the video if the video is an advertorial. Previous ASA guidance has recommended including the words "ad" or "advertisement feature" in the title or thumbnail of the vlog.

In November the ASA upheld a complaint concerning two YouTube videos featured on the YouTube channel 'Global Cycling Network" (GCN). The complainant challenged whether the videos were clearly identifiable as ads.

In each video the presenters displayed products provided by Wahoo and discussed the product's features and uses. Text beneath each video which was visible after pressing a 'show more' button stated "Thanks to Wahoo Fitness for the products used in this video. All views expressed in this video are the presenter's own." Below this, further text read: "Thanks to our sponsors" and listed several brands, including Wahoo.

GCN responded to the ASA's queries confirming that it had a commercial relationship with Wahoo involving sponsorship of its YouTube channel. Both GCN and Wahoo claimed that the vlogs in question were not advertorials as Wahoo had no editorial control over the content of the videos. Wahoo fact-checked the technical details of the product but did not influence the presenters' scripts.

The ASA reviewed the contract between Wahoo and GCN. This included a requirement that Wahoo would pay GCN for two branded videos, the content and subject of which would be agreed between them. The contract also specified that an "unboxing" video and a competition involving Wahoo products would be featured on the GCN channel and that GCN presenters would use Wahoo products during the three year term of the contract.

The complaint was upheld. The ASA found that while Wahoo's fact-checking was not editorial control alone, combined with the other elements of control set out in the contract it was clear that Wahoo did have editorial control over the content of the videos. The vlogs were considered to be advertorials that were not obviously identifiable as marketing communications and were therefore banned. Both Wahoo and GCN were reminded of the requirement to ensure advertorials are obviously identifiable.

The important message in this adjudication is that the degree of control that a marketer has over content will not just be determined by whether the marketer has an ultimate right of approval. The ASA will look at the relationship of the parties as a whole including looking at other contractual provisions such as a specified frequency of videos or requirements to use or mention specific products or features in order to consider whether the marketer has sufficient control over the content for the vlog to be an advertorial.

This article was written by Caroline Swain. For more information, please contact Caroline on +44 (0)20 7203 5158 or at caroline.swain@crsblaw.com.