At the Committee of Advertising Practice (CAP) we’re responsible for writing and maintaining the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing – the rules that govern UK advertising across non-broadcast media, including on websites and in social media space. The Advertising Standards Authority (ASA) administers the Code to ensure that ads do not contain anything that is likely to mislead, harm or offend.

The online world is obviously a vast space and one in which CAP and the ASA have a small, but important, role in regulating. Clearly, there is a host of material online – on websites, in social media sites and feeds – that is editorial content and which is not and will not be classed as advertising under our rules. We’re not here to regulate opinion or free speech.

We have a clear set of criteria for judging when a company’s own claims on its website become ‘advertising’. But what about when a company or individual is paid to include content on its website or other online space? The issue of payment for content and who has control over that content forms the key part of our work in communicating with the blogging community on how to ensure it sticks to the advertising rules.

Towards the end of last year the ASA reminded bloggers about when and how the advertising rules apply to them. In short, the ASA requires bloggers who are paid (directly or in kind) by a third party to write reviews or comments about a product or service and who cede editorial control of the blog to that third party to be up-front with their followers by making clear that it’s advertising.

Following that announcement, the ASA and CAP received a significant volume of queries from bloggers and brands asking for further information about the rules that are in place and how they can stick to them. As part of that, we were approached by Gus Ferguson of the OMN blog who sent us questions from their followers.

These rules also apply to companies; so, any business or PR agency looking to promote products and services by entering into commercial relationships with bloggers should also be aware of them.

It’s important to mention that we can only comment on matters that would likely fall within the remit of the Advertising Code. Bloggers and brands should also be mindful of fair trading laws under which the Office of Fair Trading requires companies to ‘disclose’ commercial relationships beyond what’s required by the ASA.

As yet, ASA rulings in this area are limited so our advice is very much our interpretation of how we think the advertising rules apply rather than based on ASA rulings. CAP can only give guidance and our responses should be read as such; but hopefully this will provide greater clarity to any bloggers or brands who are looking to enter into commercial relationships.

Questions from Bloggers:

Q: I sometimes post blog articles as favours to my readers that I’m friendly with… there is no money changing hands. How does the ASA look at this situation and how do you tell which articles are paid and which ones aren’t? Would I receive a warning before you implement sanctions, or would I have the opportunity to defend myself?

A: From what you’ve said, this doesn’t sound like advertising copy. If the ASA was to receive a complaint it would only contact you if it thought there was a potential problem. If it did, you would have an opportunity to respond and depending on the circumstances, it might be appropriate that the case be dealt with informally rather than with a full formal investigation resulting in a published ruling.

Q: If a brand pays for the travel and accommodation costs of visiting a specific destination, and I’m commissioned to write them a piece for their website, but I also write a piece for my own site that wasn’t required by my deal with the travel company, do I need to disclose?

A: If an advertiser pays for you to visit and review one of their destinations and you replicate the content and post it on your website then it’s likely the ASA will consider it advertising which would need to be labelled. If you choose to write a new article on your own site and the advertiser has no control over the content then the article is unlikely to be considered advertising.

Q: Bloggers are angry they have to disclose when it seems like sites styling themselves as online magazines do not have to? / Why do bloggers have to disclose stuff to the hilt when magazines are chock full of editorial content that mirrors who their ad space is bought by?

A: The rules on advertorials apply to magazines online as well. See this guidance for more information. If you’re concerned about any particular copy online we’d recommend you complain to the ASA so they can look into it with reference to the payment and control test.

Q: Do tweets and other social sharing of sponsored content need to be disclosed?

A: Sharing links socially is not advertising. Being paid to share would be.

Q: If a blogger is on a press trip and sharing on social media how should he or she make it clear that this is a freebie?

A: If there is no control by the advertiser over what is being written by the blogger (via the social media) then they don’t need to disclose the fact the trip is a “freebie” because the comments aren’t covered by the Advertising Code. Please see this guidance.

Q: Image-based disclosure of a sponsored post... What are the rules around this? Is it legal? What about those using text readers who may not pick it up if the file/graphic name is unclear?

A: We don’t give legal advice but from an Ad Code perspective this would be taken on a case-by-case basis. Using graphics to indicate advertising content is likely to be acceptable but could be problematic if consumers cannot read them. Sites might want to make it clear that these graphics are used and by viewing sites in text form they are essentially missing out on the opportunity to identify ads.

Questions from Brands and Agencies:

Q: Do ASA only consider a post as being advertising if the blogger has been paid to say something positive? What if the blogger was paid for a non-bias review with no stipulation that the review or article had to be positive?

A: The test for content being “advertorial” has two prongs, payment and control so if there is payment, but no control then it would not need to be labelled as advertising, this guidance has more detailed information on what constitutes “control”.

Q: If I give a blogger a piece of content such as an infographic that I have created, and I pay them to put that up on their site on a page with a story that is written by the blogger does that have to be marked as sponsored content?

A: It’s going to come down to who has control of the article. If you, as an advertiser, are paying them to place an info-graphic you have created and they then write an article describing the infographic, you are essentially paying them to run content that is in your control, so it must be clear that it is an ad.

Q: You state in your guidelines that "It’s perfectly legitimate for a blogger to accept payment in return for promoting something in their blog. Moreover, the rules don’t prohibit PR companies sending free gifts or samples to bloggers in the hope of receiving a positive review." Do both these situations require disclosure?

A: The first would require disclosure if, as implied in the question, the content of the blog is effectively controlled by the advertiser. The second does not require disclosure because this kind of activity is not covered by the Code.

Q: If someone places misleading information such as unsubstantiated claims on a medical product on a website in the form of a guest post, is the person that did the guest post responsible or the person that chooses to publish the content?

A: It depends what you mean by “guest post”. If the guest post is an example of third party User Generated Content (UGC), it would not be covered by the Advertising Code unless it is actively adopted and incorporated into an advertiser’s marketing communications. If the guest post is by the advertiser then the advertiser is responsible for claims made about their products in the post.

Q: Obviously having ‘Sponsored Post’ on an article means that the content loses impact as its message is seen as coming from a 3rd party with whom the reader has not allowed into their sphere of interest. This negates the value of the activity. How does the ASA recommend that brands work with bloggers in order to be able to be seen as a partner of the blogger rather than an advertiser, whist still reimbursing the blogger for their time and effort?

A: The ASA is likely to take a dim view of this as an argument, it must be clear that an ad is an ad. CAP would recommend that you contact the Copy Advice team who can help provide a bespoke solution for free.

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