Paying influencers to market products via their social media channels is a commonly accepted marketing practice. However, whether an influencer’s post/vlog amounts to an advert falling within the Advertising Standards Authority’s (ASA) CAP Code has been a grey area. The ASA’s definition of advertisements includes “an advertisement, feature, announcement or promotion, the content of which is controlled by the marketer, not the publisher, that is disseminated in exchange for a payment or other reciprocal arrangement“.
Whilst marketers often give creative control to an influencer to market the products as they see fit, the content and products to be marketed are often specified alongside the number of posts/vlogs in an attempt to avoid falling within the CAP Code on the basis that the marketer does not have ‘control’ over the content of the vlog. This results in the blog being a sponsored editorial rather than an advert.
A recent ASA decision, however, has provided a definition of ‘control’ in such commercial relationships. The decision is helpful for practitioners, marketers and influences alike as it provides guidance on what constitutes ‘control’ in the context of advertisements. Even if a marketer does not have approval over what is said or expressed in the vlog, other contractual provisions (such as the frequency of vlogs, the requirement to feature specified products or to mention specified products) may be sufficient to make such a vlog an advert rather than sponsored content.
The decision related to two vlogs by the Global Cycling Network (GCN) and featured two cycling products marketed on behalf of Wahoo UK Ltd (Wahoo). Both vlogs contained text beneath the videos in the description box which a viewer could access if they clicked the ‘show more’ button. The text stated: “Thanks to Wahoo Fitness for the products used in this video. All views expressed in this video are the presenter’s own” and later “Thanks to our sponsors …“.
GCN and Wahoo had entered into a contract whereby Wahoo would pay GCN for three Wahoo branded content videos to be produced, with both parties agreeing the content and subject of the vlogs.
The ASA rejected Wahoo’s argument that the vlogs were sponsorship deals as it did not have any editorial control over the vlogs. Despite Wahoo having no control over the specific content of the vlogs, the ASA considered the contractual arrangements gave it sufficient control over them as:
- the vlogs had been produced as part of a financial agreement between GCN and Wahoo in exchange for payment; and
- GCN was contractually bound to run the vlogs, with the contract specifying what the content and subject of the vlogs should be, and requiring GCN to reference the Wahoo products where appropriate.
When considering the vlogs as adverts rather than editorial, the ASA confirmed that the text in the description box underneath the videos was not sufficient to make it clear to a viewer that the vlogs were adverts. Of particular concern was the lack of visibility of the description box to a viewer (particularly when viewing on a mobile or tablet device) and the use of the phrase “thanks to our sponsors“. The ASA disapproved of this wording, and recommended using the word “ad” in the thumbnail of the vlog, which would enable a viewer to clearly establish, prior to watching, that the vlog was an advert.