The rules governing endorsements by celebrities and other influencers have proven a topic of increasing conversation, particularly as more brands opt for native advertising and social media endorsements. As it turns out, this is not just a murky area in the U.S., where the Federal Trade Commission (“FTC”) is located, but also across the pond in the UK where bloggers, vloggers and “endorsers” are cleverly evading similar advertising rules and regulations – as set by the UK Advertising Standards Agency (“ASA”) and Committee for Advertising Practices (“CAP”) – in order to get away with not disclosing their connections with various brands.
Not unlike the rules set forth by the FTC, the ASA’s regulations are vague and at times, unclear. They have also proven difficult to follow for those that have not done their research on the matter.
Most of the ASA’s guidelines relate specifically to “vlog” scenarios, but they can easily be read in a way that applies to typical bloggers and celebrities who tout products online in exchange for some form of compensation. Quite rightly, neither the ASA nor CAP sees anything wrong with bloggers, vloggers and social media influencers entering into commercial relationships; however, when these relationships lead to consumers being misled, issues arise – and things get a bit contentious.
Put simply, the ASA required that sponsored or commercial content must be “obviously identifiable as such” and must not “materially mislead or be likely to do so.” The ASA recommends that bloggers make it clear to readers when content is an advertisement or sponsored post, and suggest using signposts such as “ad,” “advertorial,” or “sponsored content.” This rule further extends to social media posts – such as those on Instagram and Snapchat – where both “#spon” or “#ad” are recommended.
While this likely appears to be simple enough, an examination of what does and does not amount to an “advert” scenario as defined by the ASA guidance proves the situation to be a bit more complicated. In short: it all comes down to editorial control – if the content (even in part) is in the creator’s usual style, but editorial control lies with the brand, and the creator is paid (even if “payment” is not monetary), this is a regulated “advertorial” and should be disclosed as such. This opens the door to the potentially troublesome scenario of companies offering high-value reimbursements to bloggers – practically ensuring coverage and promotion – but being protected by a lack of editorial control.
It is also important to note that even with these guidelines in place, bloggers in the UK are failing to disclose content consistently and accurately. Not only are there a number of “forgotten” declarations, we consistently see instances of undisclosed free trips, endless free products and straight up blatant refusals to disclose sponsorship even when readers have questioned the creator about the nature of such postings.
Despite such seemingly lax regulation, the ASA has in fact ruled against creators in the past – albeit not regularly. The current regulations themselves came about as a result of the ASA ruling in connection with Mondelez UK, in which several YouTube creators were held accountable for featuring videos on their channels that were created on behalf of Oreo and in return for remuneration. While these influencers “thank[ed]” Oreo for “making this video possible,” the ASA held that it was necessary to implement more rigid rules regarding disclaimers within such paid-for content. Other rulings, however, suggest that the ASA is more lenient when celebrities with known affiliations are involved. For example, footballer Wayne Rooney tweeted a photo alongside the caption “The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground."
In that instance, the ASA ruled that the reference to Nike Football was prominent and the tweet, and thus, Rooney, was clearly linked with the Nike brand. While the ASA considered that not all Twitter users would be aware of Rooney’s sponsorship deal with Nike and thus, the campaign, it held that in the context of a tweet by Rooney, the wording of the statement was such that the overall effect was that the tweet was obviously identifiable as Nike marketing communication. As a result, the ASA held that the CAP code was no breached. It appears that the notability of Wayne Rooney and the perceived awareness of a likely sponsorship was the deciding factor here.
With the foregoing in mind, it is difficult to determine whether the ASA is pulling an FTC and failing to regulate the industry appropriately or whether the creators in question are blatantly ignoring rules or assuming they just do not apply. Either way, with such rampant violations in play, something needs to change. In the meantime, bloggers, influencers, and celebrities, remember: when in doubt … disclose!
Stephanie Rose Kelly is an LLB Graduate from Glasgow, Scotland. Despite now running her own business and working as Digital Marketing and Social Media Executive, she has maintained a keen interest in several areas of the law, particularly Intellectual Property Law.