In recent years the Advertising Standards Authority (the "ASA") has received numerous complaints about advertisements not being properly identified as such, particularly when it comes to the more subtle methods of advertising via social media, online videos and blog posts.

Vloggers, bloggers and various other online influencers are connecting with audiences of millions on a daily basis and it does not come as a surprise that companies want to, and indeed could, benefit from that. However, advertising to an established group of "followers" is not without its issues: obvious advertising may cause people to "tune out" while the competition for an individual's attention in an online environment is fierce since it is incredibly easy to unsubscribe, fast forward and skip.

The Committee of Advertising Practice ("CAP") published advertising guidance specifically for vloggers and bloggers a few years ago which has, according to the CAP, resulted in an improvement in the way that advertorial content is drawn to the attention of the audience. Where ads are not quite as identifiable as they should be, the ASA has resorted to informal action. The ASA has, however, identified that the difference between sponsorship and an advertisement does not seem to be 100% clear to all advertisers and influencers and has issued new guidance.

Ads & editorial control

The test for content being classed as an "advertorial" is twofold. Firstly there must be payment which does not necessarily have to be money and could be for example complimentary products. Secondly, the business must have control over the editorial content of the blog post, tweet or vlog entry.

Where the company behind the product is able to exercise control over the content of the message that is likely to be considered an advertisement. For example in the recent enforcement against Alpro (UK) Limited, the ASA held that where the agreement for a twitter campaign between the company and the influencer:

  • Included a ban on advertising competitors' products.
  • Provided that Alpro would own the intellectual property rights to the tweets and other content gave Alpro final approval of the tweets.
  • Required the tweets to be based on the company's key messages.

This was enough to constitute "editorial control." In addition to the "stand there and say this" approach, more subtle ways of influencing the content are likely to be caught. Online influencers are known for their unique delivery and like to put their own slant on things but the editorial control test allows the ASA to look beyond this. If there is payment and editorial control, the content is an ad which should be identified appropriately.

Sponsorship – how does it differ?

When it comes to sponsorship, the influencer may receive payment (in the form of money or "in kind" gifts) but there is no surrender of editorial control. The influencer will have complete control over any content or review posted about the product. CAP does not recognise this as an "advertorial" and it would not have to be identified as such.

If it's an ad, tell

Companies and influencers must ensure all advertorials are clearly labelled and acknowledged as such. The substance of the ad is the responsibility of the influencer as well as the company behind the product. The ASA recommends that those advertising on social media always label their advertisements. There is no specific wording that must be used and common labels that are used within the industry are "ad" and "advertisement feature". A cautionary note though when labelling advertising content. Sponsorship is not the same as advertising and terms such as "sponsored by" and "spon" should not be used with advertisements. Phrases such as "in partnership with" and 'thanks to our friends at...", are also misleading to audiences so are best avoided altogether.

© MacRoberts 2016

Disclaimer

The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.