In August this year, the CAP Executive – which is responsible for maintaining the UK Advertising Codes and for providing authoritative advice on the advertising rules – published new advice and guidance for video bloggers (or "vloggers") on how to ensure they do not unwittingly contravene consumer protection legislation or the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code).

The guidance focuses on the statement in the CAP Code that marketing communications must be obviously identifiable as such. Where a blogger, or vlogger is paid to promote a brand, they must ensure they tell their readers or viewers that they are being advertised to.

The continued proliferation of vlogging means this is an issue of growing importance. The guidance on the CAP Code has been issued after the Advertising Standards Authority (the ASA), which enforces the CAP Code, has previously upheld a complaint against several vloggers who were found to have misled their viewers about the advert nature of their videos. The complaint concerned a series of YouTube videos published by vloggers referencing Oreo biscuits. Although the video blogs ended with text such as "Thanks to Oreo for making this video possible", the ASA ruled 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 guidance from the CAP Executive expands on this, looking at the different scenarios in which a vlogger may work with a brand to promote that brand and suggesting the approach that should be taken by the vlogger to avoid contravening the CAP Code. Although aimed at vloggers, the guidance is relevant to brands in general and their marketing departments in particular.

Online marketing by a brand

This is where the brand and vlogger collaborate to produce a video blog (or "vlog") about the brand and the vlog is then distributed by the brand via its social media channels. In this case, it should be obvious that the vlog is a marketing communication and, as such, it should not be necessary to add a specific label that it is an advert.

Advertorial

In this case, the video is in the usual editorial style of the vlogger but the content is controlled by the brand and the vlogger is paid by the brand for making the video (not necessarily with money). In practice, a vlog would be controlled by the brand if the brand has editorial control over the advertorial (i.e. the brand has the final say on the copy before it is published or broadcast). A brand that gives free products to a vlogger in hopes of a good review, would not necessarily have control over that content and the content would not be subject to the CAP Code. 

When the brand does have editorial control, the vlogger is responsible under the CAP Code for making it clear that his video is an advertorial. The guidance suggests that an appropriate label may be "ad", "ad feature" or "advertorial" but cautions against using the label "sponsored" or "funded by" as viewers may be confused as to what this means in practice.

In terms of where to put the label, the CAP Code insists on prominence. Therefore, the guidance suggests not to use the description box below the vlog as this space is not always immediately visible on smaller devices like tablets or smart phones, nor is it available when selecting a video from a playlist or email alerter.

It is important to keep in mind that the ASA specified in its decision on the vlogging complaint that the label must also be timely (i.e. viewers need to know they are selecting an ad to view before they watch it and merely making them aware of the fact half way or at the end of the video is not sufficient) and clear (i.e. it must be clear to a viewer at all times what is an ad and what is not).

Commercial breaks within vlogs

In this case, the guidance states that there is no need to label the whole vlog as an ad, although it must be clear when the advertisement starts, for example by the inclusion of onscreen text saying "ad feature".

Product placement

As above, the commercial message must be made clear to the viewer, so onscreen text should as "ad" or "product placement" should be used. We have written separately on product placement.

Vlogger's video about their own product

This is not an advertorial but it is still a marketing communication so the vlogger must ensure that viewers are aware of this before they select it. The video title must make plain that the video is promoting the vlogger's product(s). The guidance suggests that wording along the lines of "I'm excited about my promotional book" should suffice. In this case, unlike with advertorials, the vlogger is also responsible for any claims made about the product. 

Editorial video referring to vlogger's products

If the video is obviously a marketing communication no labelling will be necessary.

Sponsorship

This is where a brand sponsors a vlogger to create a video but has no editorial control. Sponsorship is not covered in the CAP Code and because there is no control by the brand, the CAP Code does not require the vlog to be labelled as an advertorial. However, vloggers should disclose their relationship with the brand in order to ensure compliance with consumer protection legislation.

The Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) apply where the vlogger is a trader (meaning that they are acting in relation to their own business). 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 it is also possible for consumers to bring actions against traders for misleading practices where they can show that these practices have caused them loss.

Free items

As discussed above, where a brand sends a vlogger free items without any control over the content and leaves it to the vlogger whether to include those items in the video, the CAP Code will not apply as there is no control by the brand. However, if a vlogger is incentivised to talk about a product, and does so, this should be disclosed.

There is another aspect that is not touched on in the guidance and that concerns the reputation of the vlogger. It may be damaging to their reputation to be found to have concealed that the content they are producing is paid for and controlled by an advertiser. Viewers who turn to such a vlogger looking for an impartial opinion on a blog may lose trust in the vlogger, which may diminish any existing goodwill and may prevent him from receiving further marketing opportunities and remuneration. We have seen with the practice of online guest blogging that accepting paid for links can lead to an association with spam and the tarnishing of reputations. We have written separately on the practice of accepting payment for links.

A final point is that vloggers should declare payments received from brands in return for promotion to HMRC. The Revenue has made no secret of their interest in pursuing undeclared income from blogging.