What does the CAP guidance on advertising in video blogs mean for marketers?

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Vloggers have been ushering in a new era of celebrity for some time, and with thousands of followers across social video channels they are becoming more and more influential. Zoella has over 9.5 million subscribers, for example, making her one of the most famous YouTubers in the world and giving her enormous power to drive sales amongst the beauty and lifestyle brands she endorses.

But as a relatively new phenomenon, there was no specific provision made for vlogs in advertising law, which has left many brands unsure of the legal issues around the use of vlogs for marketing purposes. To clarify this, recently the Committee of Advertising Practice (CAP) issued guidance to help vloggers who feature advertising content in their vlogs understand and comply with the relevant rules applicable to marketing communications set out in the snappily-titled UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code).

What do the new rules say?

The guidance looks at several non-exhaustive scenarios where vloggers and brands might work together, and gives practical advice as to how the CAP Code rules might apply to each. Eight vlogging scenarios are identified, namely:

  1. Online marketing by a brand.
  2. “Advertorial” vlogs.
  3. Commercial breaks with vlogs.
  4. Product placement.
  5. A vlogger’s video about their own product.
  6. Editorial video referring to a vlogger’s products.
  7. Sponsorship.
  8. Free items.

The guidance starts from the basic assumption that any mention of a brand during a video blog is an independent decision of the vlogger as the “publisher”. The rules require that where the vlogger has a commercial relationship in place with a marketer, viewers must be made aware of this so they can make informed decisions about the content they are viewing.

For brands, the new rules bring the approach to working with vloggers much closer to traditional advertising. For example, the rules require marketing communications to be obviously identifiable as such (rule 2.1), to make clear their commercial intent, if that is not obvious from the context (rule 2.3), and they require marketers and publishers to make clear that advertorials are marketing communications; for example by heading them as an “advertisement feature” or similar (rule 2.4).

As marketers find new technologies and ways to communicate with their customers, the scope of the advertising law is expanding. However, at the same time this is blurring the lines between advertising and personal editorials. This means it’s more important than ever for brands to be aware of how they should work with vloggers so that they comply with the law and do not risk misleading consumers.

What has been the response to the guidelines?

So far, the guidance has been welcomed by the vlogging community because they now have clarity on how they can work with brands. Previously, the situation was much less clear. There was a landmark ruling in 2014 by the Advertising Standards Authority (ASA) against a series of vlogs featuring Oreo biscuits, which left both vloggers and marketers uncertain about their partnerships.

The videos, which showed a number of British YouTube stars taking part in the "Oreo Lick Race" challenge, were banned because they didn’t clearly indicate to viewers before they clicked on the content that there was a commercial relationship between the vloggers and the advertiser. Nor did the campaign clarify the extent of the advertiser’s involvement (both in the creation and funding of the videos).

What next?

With the new guidance, the ASA now places an obligation on the marketer, and by extension the vlogger, to be transparent and clearly disclose the fact that they’re advertising a product or service by the use of suitable labelling (such as “Advertisement”; “Advertisement Feature” or “Promotional Feature”). However, CAP has left it fairly open to marketers and vloggers to determine how best to ensure advertorial content meets the guidelines – there is no single “right” way to indicate an ad.  This allows vloggers the opportunity to maintain their personal style or brand feel in the vlog.

The rule that ads across all digital platforms must remain fair, decent and honest is, and remains, paramount, but some may argue that the need to include overt labelling of advertising within the headlines of videos will lead to fewer views for vloggers. Will content produced by those vloggers who mainly monetise their sites through advertising fall in popularity because of these rules?

That remains to be seen. One positive though is that by being upfront with viewers, vloggers are now able to build a fan base from the material they produce, without being criticised for seeming to be in the pocket of marketers. CAP’s call for greater transparency means that vloggers should be able to make it clearer to the public when a vlog is promotional, and this is equally important for brands so that they can build consumer trust and loyalty.

Emily Featherstone is an associate, and Calum Murray a partner, for technology and digital media law firm Kemp Little.

About Emily Featherstone

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