With summer PR campaigns well under way and agencies already planning autumn and Christmas campaigns, brands and PRs would do well to keep in mind the legal and regulatory challenges facing their relationships in the blogosphere.
Brands and bloggers – particularly fashion and lifestyle bloggers – often enjoy a symbiotic relationship, with the former providing products and the latter providing positive coverage.
Essentially, brands obtain valuable exposure that doesn’t look like advertising, while bloggers receive a production line of content and, perhaps, payment or the occasional freebie.
Sometimes, however, this arrangement goes awry, as the makers of Oreo cookies discovered late last year when they and several vloggers breached the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) by failing to make it obvious to viewers that editorial-style videos featuring irreverent biscuit-related challenges were actually paid-for ads.
According to the CAP Code, editorial-style content is disclosable as an 'advertorial' if it is paid for by the brand and the brand has editorial control, for example because it has provided or approved the content.
The second criterion – control – is crucial.
CAP guidance states that "the rules do not prohibit PR companies sending free gifts or samples to bloggers in the hope of receiving a positive review".
However, is there a point at which a PR adviser’s "hope" of a positive review evolves into a reasonable expectation, whether because the PR knows that the blogger feels an obligation to reciprocate (because of the payment/gift) or because this is the parties’ usual course of dealing?
Even though the brand may not have seen the content, arguably control has changed hands. While this might fall short of "control" for the purposes of an Advertising Standards Authority investigation, it does highlight how the line between editorial and advertorial can become blurred.
If products are provided to bloggers for a genuine review, brands and PRs should avoid exerting any influence over the content. If content is advertorial, it must be clearly labelled as such.
Even then, there are other issues.
Bloggers who are paid to give positive coverage of products in a way that suggests they are offering a genuine opinion could potentially fall foul of consumer protections laws, and attract the attentions of Trading Standards, if they do not disclose the fact they have been paid.
Bloggers need to be careful because the payment may not be immediately obvious – a free holiday or expensive pair of shoes could theoretically constitute a payment.
This is not to say that a paid-for review that happens to be positive will necessarily be problematic; the independence of the blogger is key. Incidentally, bloggers may be surprised to learn that HMRC is likely to treat any payments or gifts as disclosable for tax purposes.
Some non-EU jurisdictions such as Norway require all paid-for content to be labelled as ads.
The position is not so clear-cut in the UK, and brands, PRs and bloggers need to be alive to all the issues when conducting their relationships.
Alex Meloy is a solicitor at Howard Kennedy LLP