• At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
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Flogging while vlogging: CAP offers guidance on advertising in video blogs

Perception is everything, or so they say. It should therefore come as no surprise that the use of video bloggers or “vloggers” to endorse and promote products in their vlogs (through platforms such as YouTube) is becoming an increasingly prevalent online marketing strategy. Marketers are drawing on the impact of positive human endorsement to influence consumer behaviour and purchase decisions.

However, the incorporation of marketing material, in whatever form, into a vlog, will in most cases turn the vlog into a form of “marketing communication” to which certain rules apply in the UK context. Vloggers and marketers alike need to be aware of what these rules are, and the circumstances in which they may arise.

Recent guidance published by the Committee of Advertising Practice (CAP) aims to ensure vloggers who feature advertising content in their vlogs comply with the relevant rules with respect to marketing communications set out in the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). These 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 require marketers and publishers to make clear that advertorials are marketing communications; for example, by heading them “advertisement feature” (rule 2.4).

These rules have traditionally been applied in the context of standard offline and online advertising. However, we now see the scope of the rules expanding as marketers continue to turn to new and emerging technologies in order to widen their reach and capture new audiences. As a result, the boundaries between advertising and personal editorials are becoming more blurred. This latest guidance from CAP will help to clarify the application of these rules in the particular context of vlogs. The guidance has been largely welcomed by the vlogging community following the Advertising Standards Authority’s (ASA) landmark 2014 ruling against vlogs featuring Oreo biscuits, which left vloggers and marketers alike in a state of uncertainty.

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”. However, the rules require that where the vlogger has a commercial relationship in place with a marketer, viewers need to be aware of this fact, so they can make informed decisions about what they’re being told. In such cases, marketers cannot assume that viewers’ familiarity with ad campaigns in other media will mean they automatically recognise advertorial content delivered via what might otherwise be considered a ‘non-promotional vlog’. The Mondelez ruling highlighted these issues (in that case the videos didn’t clearly indicate that there was a commercial relationship before viewers clicked on the content) and as a result 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 by the use of suitable labelling (such as “Advertisement”; “Advertisement Feature” or “Promotional Feature”).

Rule 2.4 deals specifically with “advertorials”, which are defined by the CAP Code as ‘an advertisement feature, announcement or promotion, the content of which is controlled by the marketer… in exchange for a payment or other reciprocal arrangement’. In the context of advertorial video blogs, CAP’s remit relies on the existence of two elements: the marketer having a sufficient degree of editorial control over the content of the video, and payment (which need not be financial). If both of these elements exist, the result would be an advertisement feature and would need to be labelled as such. This can be compared with Schedule 1 to the Consumer Protection from Unfair Trading Regulations, which bans certain commercial practices including the use of editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer.

In addition to advertorial vlogs, the guidance looks at several other 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, including whether overt labelling of the vlog as an advertorial would be required. The vlogging scenarios are identified as:

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

It is worth noting that CAP has left it fairly open to marketers and vloggers to determine how best to ensure advertorial content meets the guidelines. They have not specified any ‘one way’ of labelling an advert within a vlog; vloggers and marketers therefore have the ability to label advertorial content in such a way that fits in with the style of the advert, or the vlogger’s personal style, provided it is suitably overt.

CAP’s call for greater transparency may be necessary to ensure ads across all digital platforms remain fair, decent and honest, and that viewers are not being lied to, nor that their trust in a vlogger is being abused. Although some may argue that the need to include overt labelling of advertising within the headlines of videos will lead to less views, it is likely most will be satisfied with the increased clarity on the issue. Importantly for vloggers, by being upfront with viewers they are now able to build a fan base from the material they produce, without being unfairly criticised for the fact they’re being controlled by marketers.

For further information please contact Emily Featherstone or Calum Murray.