Of course we can pay a vlogger to advertise products and services on YouTube or any other platform. Lots of brands do. And for certain demographics, working with these sorts of trusted influencers may just be a no-brainer.
However, as with bloggers or tweeters, we may be obliged to indicate the fact that there is a commercial relationship. And, most seriously, when we control the content and pay the vlogger then viewers will need to be alerted before engaging with the video – so in the title or the thumbnail.
In the UK, specific guidelines were released by the Committees of Advertising Practice, partly in response to vloggers’ concerns that brands and advertisers could pressurize them to conceal the commercial relationship.
1. Advertorials – need to indicate in the title/thumbnail
The key distinction is between “advertorials” and other formats. An advertorial is a video in the usual editorial style of the vlogger but where the content is controlled by the advertiser and the vlogger has been paid (or received something else of value e.g. free products). This is where we need to indicate the fact that this is a marketing communication before viewers engage with the video. Note that including the indication in the description under the content won’t normally be sufficient (on the basis that on mobile devices and when playing from the sidebar or play-list then the description may not be visible before launching the video). Some brands may tend to prefer oblique or vague references such as “sponsored by,” “supported by” and “thanks to X for making this possible”, but these are specifically not recommended, and “ad”, “advertorial” or “ad feature” should be preferred.
2. Commercial Break / product placement – need to identify the commercial message but not the entire video
If most of the video is not paid for, but it contains a commercial break or paid-for visibility or use of a particular product, then there is no need to include “ad” or similar in the title of the video. However, we still need to identify the commercial content or product placement as such, so an on-screen message, held-up sign or just an appropriate message in the audio should be sufficient.
3. All the rest – consider how the commercial interest needs to be disclosed
Here the advertising rules meet the laws on unfair commercial practices. Often it will be obvious from the context that there is a commercial message (“I just released a new product which you can buy by clicking below”). If the sole purpose of the video is to sell products or services then clearly it is a marketing communication and needs to be identified as such before the viewer engages. If the brand has sent free samples but without any control over the review, then this is not an advertorial – but if accepting the item is conditional on giving a review of some sort then we should disclose that an incentive has been given to talk about it. Sponsored videos are a different category – usually the sponsor will expressly want to be named and that will most likely be sufficient disclosure of the relationship.
4. Final considerations
The key thing is to be clear on whether we are dealing with an advertorial or not. We need to be aware of the criteria for this i.e., payment and control. So if the intention is not to make an advertorial then we need to ensure we don’t inadvertently meet those criteria e.g., by providing free products for review and/or asking to review or approve the content of the vlog (including via our agency). Of course, if we know we are creating an advertorial, then we should ensure that the contract with the vlogger contains proper provision for us to review the content in advance, as well as provision for withdrawal of the video, and possibly appropriate warranties and indemnities in case of any complaints over IP, defamation, comparative advertising or breach of the CAP or other local advertising rules. In any event, there are some clear areas emerging that we would definitely want not to be associated with and to prohibit the vlogger from doing for us, e.g., recording while driving.
Finally, although in the UK (and in the US) we have detailed guidance available, we always need to go back to the essential principles which are that paid-for endorsements must be identified, and we will be liable for failure by our vloggers do this appropriately. Similar principles will apply anywhere throughout the EU (see the EU Audiovisual Media Services Directive which provides that “audiovisual commercial communications shall be readily recognisable as such”). By way of example, the Spanish General Advertising Law states (rough translation): “advertisers must reveal unequivocally the promotional nature of their advertising”. Often the influencers and vloggers already know this instinctively and – correctly – will resist attempts to be anything less than upfront with their audience.