Out-Law News | 25 Sep 2019 | 10:04 am | 2 min. read
Dublin-based Sarah Power of Pinsent Masons, the law firm behind Out-Law, was commenting after Ireland's advertising watchdog, the Advertising Standards Authority for Ireland (ASAI), ruled recently that three separate vlogs breached advertising rules set out in the ASAI Code.
In each case the adverts were found to have breached a rule that marketing communications are to be "designed and presented in such a way that it is clear that it is a marketing communication".
The ASAI Code further requires that marketing communications do not "misrepresent their true purpose", and that they are not "presented as, for example, market research, consumer surveys, user-generated content, private blogs, or independent reviews if their purpose is marketing, i.e. the promotion of a product". The ASAI said all three adverts breached those requirements too.
In each of the three cases, the ASAI took issue with the disclosures that had been made by the vloggers about their commercial relationship with the companies they had partnered with for the promotions.
One case involved vlogger Ellie Kelly who was promoting makeup products sent to her by online retailer Beauty Bay on her YouTube channel. Details of the commercial relationship between Kelly and Beauty Bay were outlined in text which could be accessed underneath the video, but only if viewers proactively clicked to view it. The Complaints Committee at the ASAI said that it should have been made "immediately apparent at the time of publication that the post was a marketing communication prior to consumer engagement through the use of '#ad/#sp' in the video title".
The second case involved a promotion on the 'katiekontour' Instagram account. The video was of a makeup tutorial featuring products by Flormar. The video followed an earlier post by the blogger which featured an image of the blogger modelling a makeup look she had created using Flormar products and a list of the products used. That original post also contained the text '#sp' to denote the fact it was a sponsored post, but the follow up post with the video made no such disclosure.
The Complaints Committee said that because people might view the video posting in isolation, "a relevant hashtag" should have been used to ensure the marketing communication was identifiable as such.
The third case concerned a 10-minute long video on the 'Laura's Views' YouTube channel. In the video the blogger talked about the brand ethos of REN Skincare and highlighted the impact the products had had on her skin. The ASAI received a complaint that the blogger had failed to disclose the fact she was a brand ambassador for the company until the end of the video. That disclosure was made eight minutes and 35 seconds into the video, according to the watchdog.
The Complaints Committee said the brand ambassador relationship "should have been made clear from the beginning of the video at the time of publication". While it acknowledged the video was part of a wider social media campaign concerning that brand ambassador relationship, it said that "because a viewer could engage with the video in isolation, the commercial relationship should have been made clear on each relevant platform".
In this case, the watchdog found that the video breached rules which require that marketing communications do no "mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise", and which further require that advertised do not "exploit the credulity, inexperience or lack of knowledge of consumers".
Power said that the investigations carried out by the ASAI follow on from guidance it issued to bloggers last year in relation to compliance with advertising rules.
"The ASAI has become very active in this area," Power said. "These recent decisions are indicative of the approach being taken by the ASAI and the standard to which bloggers are being held. In addition to the ASAI Code, bloggers and traders alike should also be mindful of their obligations under the Consumer Protection Act 2007 and the Misleading and Comparative Marketing Communications Regulations 2007 under which traders or consumers can issue proceedings for misleading content."