If you get given a free pair of trainers and share a picture on your social media, is that an Ad?
Regulation of the relationship between bloggers and brands is not a new concept but given recent discussions online I thought it could be helpful to provide a summary of the key UK regulations.
It is important for me to highlight at the outset that whilst I am a qualified lawyer practicing as a solicitor in the UK I do not work in the field of regulation or advertising. The content of this piece comes from my review of the guidance provided by the Advertising Standards Agency (ASA) and consideration of relevant case law. It is not a definitive guide but intended to be a helpful guidance note.
The applicable guidance for bloggers when working for brands is:
“Ads must be clearly identifiable as such. Put simply, a blogger who is given money to promote a product or service has to ensure readers are aware they’re being advertised to”.
On the face of it this appears quite clear but not all relationships involve the transfer of money and gifting can cause bloggers concern as to how to disclose that relationship to their readers.
The advertising code (known as CAP) will apply when:
“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".
This is perhaps not the clearest guidance and this blog post aims to explain what this means in a practical sense.
How are the regulations applied?
There is a two stage test when considering whether content amounts to advertising and both limbs must be satisfied. They are
If ‘payment’ exists and the content is ‘controlled’ by a marketer, the ASA would consider that material within its remit and rule 2.4 would apply, meaning the fact that the advertorial is a marketing communication must be made clear.
Payment - although the receipt of money would clearly satisfy this limb, money does not need to change hands for there to be a payment. Payment in kind, such as gifting including travel expenses, are likely to be considered payment.
Control - the control limb considers the question of who has control over the editorial of the content. The ASA advise that if a brand has the final say over the editorial it is likely to be found that they have control.
Therefore, if a company were to offer a free stay in a hotel in a return for blog and social media posts and have final sign-off on the content before it is published it will amount to an advertisement and must be clearly marked as such for readers, despite the blogger not being receiving a payment in monetary terms.
Alternatively, where a brand sends out free samples to bloggers in the hope of some kind of promotion in return this would not be considered an advertorial.
Wayne Rooney, Nike and the ASA
One of the cases which explains the issues clearly is the ASA Adjudication on Nike (UK) Ltd. (Note: this adjudication was in 2012 but is yet to be overruled).
Two tweets for Nike were posted in January 2012 on Twitter from the official accounts of Jack Wilshere and Wayne Rooney
a. The tweet from Wayne Rooney stated "My resolution - to start the year as a champion, and finish it as a champion...#makeitcount gonike.me/makeitcount".
b. The tweet from Jack Wilshere stated "In 2012, I will come back for my club - and be ready for my country. #makeitcount.gonike.me/Makeitcount".
The issue were the tweets “obviously identifiable as marketing communications”.
Nike’s position was that the communications were clear and that the tweets were for people who had chosen to follow the footballers who were well known for being sponsored by Nike. Nike explained the basis of their campaign; that whilst Nike had obtained the footballers’ aims for the year ahead it was the footballers’ personal aims that formed the content of each pledge. The footballers were then allowed to engage with any responses as they saw fit. Nike also explained that the inclusion of their website URL in the tweet made it clear that the purpose of the tweet was to direct the reader to the Nike website; essentially that the URL and hashtag were clear indicators of an advert.
The ASA did not agree. They concluded that the Code had not been complied with as marketing communications had to be “obviously identifiable” . “The Nike reference was not prominent and could be missed, consumers would not have already been aware of Nike’s “#makeitcount” campaign and that not all Twitter users would be aware of the footballers’ and their teams’ sponsorship deal with Nike. We considered there was nothing obvious in the tweets to indicate they were Nike marketing communications. In the absence of such an indication, for example #ad, we considered the tweets were not obviously identifiable as Nike marketing communications and therefore concluded they breached the Code.”
The ASA required that the ads should no longer appear and that Nike should make sure their advertising content was obviously identifiable as such.
There are so many different scenarios and no two blogger/brand relationships are the same, but in an attempt to help makes things clearer, I have included my interpretation of the how guidelines work in practice:
1. Disclose your relationship status prominently - if something is an advert then say so and do it at the start of the post. Transparency applies not just to disclosure but to your approach. Think about your reader, tell them at the outset of a piece that it is a paid collaboration, don’t try and hide it in the hashtags at the end. Being up front and clear will help you to build trust with your audience. You should be proud to highlight a post as a paid collaboration. If a brand is paying you to promote their product that’s a pretty huge deal and you should be proud to start your posts by alerting your readers to that.
2. If your content isn’t an advert say so - It’s a scary thought to think that anyone can report you to the ASA for non-compliance, it’s even scarier if you’re not doing anything wrong. No-one wants a letter from ASA dropping on their mat so by being clear in your posts about products it will help to avoid this happening. There is no set way of saying this but something along the lines of “I know I only have positive things to say about X but it isn’t a sponsored post” would suffice. Without a sign post that a post isn’t sponsored readers may assume that it is and lose faith in your content for not marking it as advertorial.
3. Timeframe for disclosure - you do not need to disclose a relationship with a brand for years to come unless, you are receiving payment and they have control of the content. Marking your content as an advert is only required when the two limbs apply, however, as noted in (2) above, and particularly so if you have previously worked with a brand, it may be worth flagging to readers when something isn’t paid.
4. You need to treat each blog post and social media post as entirely separate - The conclusions in the Nike adjudication are great points to apply here. You will not be able to rely on commentary on your blog to support disclosure of brand relationships for a social media post and vice versa. You need to clearly state on each blog post and social post what the relationship is. You may think that this is a little “spammy” but someone who is new to your blog or social profile won’t know about your brand relationship. Plus it need only say sponsored or not sponsored you don’t need to set out your whole history with a brand.
5. The guidelines apply to Instagram and Facebook Stories - as with (4), you need to be clear on each post what the relationship is. Lots of bloggers disclose on the first of a series of stories that they are working with a brand and then do not put anything after that. This approach is not without risk but could be justified. Think about the main two prongs above: payment and control, if a brand has to approve your stories before you post them, then I would recommend that you disclose on each and every story that the content is advertorial.
6. Is saying “Thanks [Insert name of brand] for these amazing new trainers” enough? - On review of the guidance I would say posting in this manner could open yourself up for criticism. The free product is payment in kind so it ticks the box of being a “payment”. As to whether it meets the “control” requirement will depend on the brand request and arrangement you have with them. In my opinion I would avoid saying “Thanks [Insert name of brand]” because on an advertising level it doesn’t explain what the relationship is so could be seen to fall foul of the guidelines. Plus, it doesn’t really add any value to your audience or the brand. Something like, “Feeling incredibly lucky to have been sent this new backpack from X to be one of the first to test out their new women fit technology” would be better. You could go one further and say something along the lines of you’ll be sharing your own honest review after your next adventure that way it is clear to your audience that the product is a free gift but that the editorial content is your own.
If you have any questions on any aspect of this then ask the ASA. The ASA are a regulatory body but their aim is to offer guidance and support so contact them if you need to check how best to disclose something.
I really hope you’ve found this helpful. If you have any questions or comments then pop them below. Feel free to share this post with others who might appreciate the guidance.
P.S. The pictures in this post were created as part of one of my favourite paid collaborations this year to promote Wiggle’s new outdoor category. All of my favourite outdoor brands in one place. Photos taken by James Carnagie