THIS RULING REPLACES THAT PUBLISHED ON 15 NOVEMBER 2017. THE WORDING OF THE ASSESSMENT HAS CHANGED BUT THE DECISION TO UPHOLD THE COMPLAINT REMAINS.
Two YouTube videos on the channel "Global Cycling Network (GCN)" were seen in March 2017:
a. The first video was titled "Unboxing The Wahoo Elemnt Bolt Bike Computer" and featured the vlogger Simon Richardson sitting at a table. The video started with Simon stating, "Welcome to GLN boxing, this week we have an absolutely brand new product to show you, it is the Wahoo Elemnt Bolt Bike GPS Computer. And there is so much going on in here, I'm going to have to be speedy." Simon proceeded to unbox the product and offered viewers a chance to win the product. Following that, Simon discussed how to use the product and its different features.
Text beneath the video contained in the description box, which appeared when a 'show more' button was pressed, stated "Thanks to Wahoo Fitness for the products used in this video. All views expressed in this video are the presenter's own". Further down in the box, text stated "Thanks to our sponsors …" and listed a number of sponsors including Wahoo Fitness.
b. The second video was titled "GCN Flanders Challenge - Wahoo Elemnt Bolt First Look" and featured the vloggers Simon Richardson and Matt Stephens. The video started with Matt stating, "The Wahoo Elemnt Bolt is new to the market, so we thought we would devise a challenge to see what they - and us to be fair - could do." The video continued with Simon and Matt riding a bike using the Wahoo Elemnt Bolt. A voice-over stated the product’s uses and its different features. The video ended with Simon stating, "If you are after a little bit more information about Wahoo Elemnt Bolt then I have unboxed it and you will get to know everything that it does, so if you want that click just down there."
Text beneath the video contained in the description box, which appeared when a 'show more' button was pressed, stated, "Thanks to Wahoo Fitness for the products used in this video. All views expressed in this video are the presenter's own". Further down in the box, text stated "Thanks to our sponsors …" and listed a number of sponsors including Wahoo Fitness.
The complainant challenged whether the ads were obviously identifiable as marketing communications.
Play Sports Network t/a Global Cycling Network (GCN) confirmed that they had a commercial relationship with Wahoo Fitness. However, they said that Wahoo were only sponsors of their channel; the videos were not advertising as Wahoo Fitness was not granted any editorial control over the content of their videos. They said the involvement of Wahoo was limited only to fact-checking technical details of the product. They said Wahoo did not influence the script for the videos.
GCN supplied a copy of their contract with Wahoo, which included an agreement that Wahoo would pay GCN for three Wahoo branded content videos to be produced with the "content and subject to be agreed between Wahoo and PSN". The contract included the specification that an “unboxing” video and a competition with Wahoo products be featured on the YouTube channel. The contract also required that GCN presenters must ride with Wahoo Head Units in all relevant core indoor and outdoor channel content during the three-year term.
Wahoo said that they believed the videos were sponsorship deals and did not constitute advertising. They said that the videos were not advertising as they did not have any editorial control over the videos, which were created by GCN. They said that they only checked technical details of the products featured in videos and did not influence the script. They confirmed that they also supplied Wahoo Fitness products to GCN for the videos.
The ASA first assessed whether the videos were advertorials, and accordingly within the remit of the CAP Code. The Code defined an advertorial as an advertisement feature, where the content was controlled by the marketer, not the publisher and was disseminated in exchange for payment or other reciprocal relationship.
We noted that both videos had been produced as part of a financial agreement between GCN and Wahoo, and we were therefore satisfied that the videos were disseminated in exchange for payment.
In assessing the degree of control of content Wahoo had over ad (a), we noted Wahoo's comments that they had not been granted any editorial control over the video, except from fact checking the technical details of the product. We considered that the review of the technical details of the product did not by itself constitute editorial control by Wahoo.
However, we noted that GCN were contractually bound to run the competition and the 'unboxing' feature of the video. The contract also stated that the content and subject of the videos was to be agreed by both parties in advance. We considered that because GCN were contractually obliged to include a competition for Wahoo’s product, to feature the vlogger ‘unboxing’ the product and to agree the content and subject of the videos in advance, Wahoo had exercised editorial control over the content.
In relation to ad (b), the contract stated that PSN presenters must "ride with Wahoo Head Units in all relevant core indoor and outdoor channel content during the term" and "GCN will reference Wahoo product features where appropriate …as mutually agreed by both parties".
We noted that the wording of that contract term allowed both parties to determine which content would be "relevant" for use of Wahoo Head Units. We also acknowledged that the contract did not stipulate anything further in relation to the specific content of the videos. However, we considered that GCN were nevertheless contractually obliged to feature the head units in any content deemed "relevant" throughout the three-year period, and to reference the products' features in the videos subject to a mutually agreed contract term. We therefore considered that this term implied that Wahoo, and not GCN, had a sufficient level of control over the video to render the video an advertorial. Overall we considered that the references in the contract to “mutually agreed”, “agreed in advance”, “must ride with”, “detail the key features” and the “exclusivity of the headset”, along with the dictation of the types of content that must be delivered, suggested a degree of editorial control that went beyond the sponsorship of content.
We next considered whether the advertorials were obviously identifiable as marketing communications. We noted that the description box of the videos stated "Thanks to Wahoo Fitness for the products used in this video. All views expressed in this video are the presenter's own". We also noted that the description box stated "Thanks to our sponsors" and included a list of different brands that worked with GCN. However, we considered that those labels were insufficient to make clear that the video was an advertisement, as opposed to other forms of commercial relationships such as sponsorship arrangements, with the claim "all views expressed in this video are the presenter's own" suggesting to viewers that the content was editorial. Furthermore we noted that the description box was not immediately visible, particularly when viewing the site through a tablet, mobile browser or app, while the videos themselves did not contain any references to indicate that the videos were advertising. We considered that Wahoo needed to make clear that the videos were advertising prior to the point of engagement, for instance by including the label "ad" in the thumbnail.
Because the labels "Thanks to Wahoo Fitness for the products used in this video" and "thanks to our sponsors" were not sufficient to make clear that the video was an advertisement by itself, and because the labels were insufficiently prominent in both ads, we concluded that both videos were not obviously identifiable as marketing communications, in breach of the Code.
The ads breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
The ads must not appear in their current forms. We told GCN and Wahoo Fitness (UK) Ltd to ensure that the ads were obviously identifiable as marketing communications, for instance by using the label "ad" in the thumbnail.