These days bloggers are becoming less like independent journalists and more like A-list celebrities. Particularly in fast paced industries like food, fashion and technology, having a product appear in a well-known blog (or snapped in the hands of a well known blogger) can be valuable advertising for a brand due to the instant and seemingly genuine message that is passed on to that blogger's followers.
Blogging has become big business, too. Some fashion bloggers reportedly take home hundreds of thousands of dollars each year, simply for being photographed wearing a certain garment, appearing at a certain event or reviewing a new range. Add to that the huge quantities of free goods and services that are sent to bloggers in the hope of receiving a positive review, and it is easy to understand where recent public complaints that the blogosphere is "selling out" have come from. The core of the issue is that it can be difficult for readers to know where the blog's editorial content ends and where the advertising begins.
The Advertising Code of Ethics, published by the ASA states that "advertisements should be clearly distinguishable as such, whatever their form and whatever the medium used; when an advertisement appears in a medium which contains news or editorial matter, it must be presented so that it is readily recognised as an advertisement". The ASA has previously said that it interprets "advertising" in the widest sense, and in our view it is likely that a paid-for product review on a blog could be considered "advertising" by the ASA.
The Fair Trading Act also prohibits engaging in misleading and deceptive conduct "in trade" (which could capture a paid-for editorial that made misleading comments about a product or implied that the blogger was impartial when they actually were not). If the proposed prohibition on unsubstantiated representations is passed as part of the Consumer Law Reform Bill, then the law is likely to tighten further in this area by requiring that representations made in trade be based on "reasonable grounds".
The take home message is that businesses and bloggers have a responsibility to ensure that advertisements are identified for what they are and that their content is fair and accurate. Not all forms of blogger endorsement will constitute "advertising" and the line between "advertising" and "editorial" is a fine one (the ASA has published some guidance about the distinction – see here and here).