Over the past few months, bloggers and disclosure have come to the forefront in the media, but there has still been a lot of confusion in the air.
Is this an ad? Do I need to disclose? When do I need to disclose? There were a lot of questions that needed to be answered. To combat this confusion, I decided to get in touch with the Advertising Standards Authority of Ireland (ASAI) to set the record straight.
Niall from Unique Media (who liaises with the ASAI), was my point of contact and I sent him on 18 questions and scenarios relating to the most common blogger queries.
These are exactly the answers that I received and the only edits I have done are grammatical changes.
1. Is the ASAI monitoring bloggers?
Our intention is to begin monitoring this area later this year.
The ASAI regularly conducts monitoring exercises of individual marketing communications to assess compliance with the [ASAI] Code requirements. Such exercises can be conducted on specific media or a mix thereof. They can also be focussed on a particular industry or area of economic activity. Initially, this is carried out on an informal basis with the advertiser/promoter being asked for comments within a specific time frame. Failure to respond to the Compliance Monitor’s request for information may result in the matter being passed to the Executive for a formal investigation, as per their normal investigation procedures.
The ASAI Monitoring Service also monitors compliance with all of the Complaints Committee’s adjudications. As of the ASAI’s Annual Report 2015 issued earlier in the year, ASAI recorded a compliancy rate of 98%.
2. Is a blogpost / vlog only considered an ad if they’ve been paid to say something positive? What if the blogger was paid for an honest review that could be positive or negative?
Advertorial should be clearly identified and distinguishable from editorial. One of the intents of the rule is to ensure that where there is a commercial relationship, consumers are aware that it exists.
3. If a blogger mentions a product on their blog (say it was a sample that a PR / company was sending out), do they have to declare whether they got it for free or paid for it themselves?
If the blogger received only the product and no direction what to say, and there was no expectation as to what to say on the part of the brand, then it is not marketing communications under the Code.
However, the International Consumer Protection and Enforcement network recently launched Guidelines for Digital Influencers, and they consider that when free items are received, this should be disclosed. The Competition and Consumer Protection Commission in Ireland is a member of ICPEN and have previously expressed the same view. So while the receipt of free products does not necessarily make something a marketing communications for the purposes of the ASAI Code, bloggers should disclose that they have received product.
4. What if the blogger receives something bigger like a gym membership or a trip abroad or a hotel stay – are they legally required to declare it even though no money exchanged hands?
See above. Also it’s important to note that payment is not just limited to the exchange of money, payment can be by way of a reciprocal arrangement – getting a hotel stay for free or trip abroad is a significant benefit, and for it not to bring material within marketing communications, the brand and blogger would have to show that there was not “control” on what the blogger said.
5. What if in the above scenario, no money was exchanged, however the company asked the blogger if they could write a piece or share what they thought of it on social media?
If the brand genuinely offers the benefit and seeks an honest review, and that can be shown, then it is unlikely to be considered marketing communications for the purposes of the ASAI Code.
6. If a blogger received something for free and were asked to write about it, but the people who asked were in charge of the final decision of whether it went live or not, is this a marketing communication?
If a company is telling a blogger what to post, it is a marketing communication and should be disclosed as such. If by implication they are directing the blogger what to post, because the post won’t be used unless the company approves of it, it may be considered a marketing communication, but this would be judged on a case by case basis.
7. What happens if a blogger received something for free and was asked to write about it on their blog – say they tried it, liked it, and wrote a positive review – and then following that review, they mention it a few times across their blog? Do they have to disclose that they got a free product every time they mention that product?
See above for discussion re: “free”. If the original blog was deemed marketing communications, then it should be flagged each time. You can’t assume that readers will have seen the earlier post/blog.
8. If a blogger got a product but had to return it after they reviewed it, for example, the use of a car for a week, should they still disclose?
If payment was received, the blogger should always disclose as an advert, as too should the company encourage the blogger to disclose the post as advertorial. The reputation of the brand is as important as the bloggers.
9. Say a friend of mine, who’s also a blogger, asked me to share a post about a product/event that they’ve been paid for to do. I’m happy to do it as the person is my friend. Am I required to disclose anything?
If you haven’t received payment (or reciprocal arrangement) then probably not! But this would depend on the case and it would be ultimately a matter for the ASAI Complaints Committee to decide.
10. Say I’m a vlogger (video blogger) in Ireland and I post regularly to YouTube; is it enough to put a disclosure just in the video description rather than the video itself?
If a blogger has worked with a brand or advertiser around a piece of content, this needs to be clear “from the start” of the piece of content. This means bloggers must reveal this at the beginning of a blog post or video and use appropriate # in social media.
11. A vlogger has recorded a video; it’s gone live and has been shared numerous times. After a while the vlogger notices that a product they were paid to review is in the background to the video. The video is not about the product nor features similar products, but the product is clearly visible. Should the vlogger go back and edit the video and add a disclosure?
Ultimately this would be a matter for the Complaints Committee. It would depend on the prominence of the product and whether the subject of the video was about the product or type of product.
12. Is there special or preferred wording that the ASAI would rather bloggers use with disclosure?
While the ASAI has no preference in the wording used by bloggers declaring adverts, the ASAI insists that the wording is clear and allows users to easily identify the fact the marketing communication in question, is an advert. Bloggers should use the #sponsored or #ad hashtags on social media.
13. On social media what would the ASAI prefer to see when disclosing? For example: #Sp #sponsored #ad #advert #promotion
14. Would a single disclosure about products on a blogger’s website (say in the “about” page), about disclosure be enough?
No, not at all! Not all followers would read the “About”, or disclaimers. Each time a marketing communication is involved it should be clear from the beginning that it is one.
15. Does the ASAI prefer to see disclosures at the beginning of a blogpost / video / social media post, or it doesn’t matter?
Bloggers must disclose content at the beginning of the blog post or video.
16. I’ve been paid to endorse a product across my social media accounts but in Irish (or another language which I don’t normally use). What language should I disclose that I’ve been paid for the promotion?
This question hasn’t arisen but it would seem sensible that it is in the language of the post/blog etc.
17. Say I’ve affiliate links in my blog – so when people read what I’ve written about a product, click into the link and buy something, I could earn a commission – where or what do I have to disclose on my blog?
This should be declared in the same area as the links. Also if it’s possible to click directly through from a post to purchase the product, then it should be made clear in the post/blog/etc. that there is a commercial arrangement.
18. Say a blogger works for a company and blogging is a side-project, but the product that the company produces to them is brilliant and they want to mention it on their blog: are they allowed to do this? Where they work is clearly displayed across their social media.
Once it’s clear within their blog that they work for the company.
Response from the Competition and Consumer Protection Commission:
Unlike the Advertising Authority of Ireland, which is a self-regulatory body set up and financed by the advertising industry to promote a Code of Standards in Marketing Communications, the Competition and Consumer Protection Commission (‘the CCPC’) is a statutory body responsible for enforcing consumer protection legislation across all sectors of the Irish economy. We do this by undertaking investigations and, where appropriate, by initiating enforcement action – including civil and criminal proceedings through the courts.
It is important to note that there is no specific consumer protection legislation governing the advertising sector and no specific reference to blogging in consumer law (hence the ICPEN guidelines). The key piece of consumer protection legislation in Ireland, the Consumer Protection Act 2007 (CPA), transposes the European Union Unfair Commercial Practices Directive (2005/29/EC). The CPA applies to “traders” who are defined in paragraph (a) of this legislation as a person who is acting for purposes related to the person’s trade, business or profession, and (b) a person acting on behalf of a person referred to in paragraph (a). Part 3 of the CPA provides that it is an offence for traders to engage in commercial practices, which are unfair, misleading, prohibited or aggressive to the consumer. Your readers can find some information about the CPA on ccpc.ie.
Given the CCPC’s aforementioned statutory remit, the CCPC cannot confirm or determine on the basis of hypothetical scenarios whether particular conduct or a particular practice constitutes a breach of the law. To do so could affect future investigations and enforcement actions – many of which can only be assessed on a case-by case basis and could only be ruled on by the courts. Therefore, we are not in a position to answer any further queries, as providing such information would constitute legal advice or interpretation.
The CCPC fully appreciates that many bloggers wish to understand consumer protection legislation fully to ensure strict compliance, however given our enforcement remit; this responsibility lies with the trader and not the CCPC. Therefore, we would recommend that all traders seek independent legal advice to help them understand their obligations under consumer protection legislation.
Many thanks to Niall McHugh at Unique Media for taking the time out to liaise with the ASAI and send on the answers to me. For more information on the ASAI and to see their code, follow the link here. You can connect with us on Twitter, Facebook, Pinterest, Instagram and Snapchat.
(Main image from Wikimedia Commons under the Creative Commons Zero licence)