Influencer Law 101: Vlogging disclosures

Gowlessence: the insider view into the legal side of the influencer marketing industry

12 March 2019

Influencer marketing is a powerful weapon for brands. Influencers engage with target audiences through authentic storytelling, improve brand sentiment, and so drive a successful return on investment. However, with regulatory authorities increasingly scrutinising campaigns, mitigating against potential legal, commercial and reputational damage should be considered when embarking on working with influencers on digital marketing campaigns. Gowling WLG's five-part series of Influencer 101 articles will equip you with the tools that your brand needs to ensure it's in the strongest position when approaching influencer partnerships.



Meet Gowlessence, the latest beauty brand to pop up on your social media feed. Gowlessence produces cleansers, creams and serums that its customers swear make them look good on the outside, while also making them feel good on the inside. Gowlessence's demographic is millennials that justify their indulgence on "self-care" by investing in Gowlessence's promise of organic, cruelty-free products and lifestyle.

In order to capitalise on the beauty industry's penchant for digital marketing, Gowlessence want to launch an influencer marketing campaign. Gowlessence has allocated a generous budget for this, in the hope that collaborating with influencers that already have loyal audiences will bring more eyeballs - and subsequently, sales - to the brand.

Vlogging disclosures

Just as posts on social media containing pictures and text have to be labelled correctly if they are advertorial, videos and vlogs of the same nature must be disclosed too. Vlog collaborations are either: (i) a video produced and published by a brand featuring a vlogger (this is a marketing communication, not an advert); or (ii) a video in a vlogger's style, but the content controlled by the brand (the brand has editorial control, therefore this is an advert).

Disclosure for vlogs is a more onerous obligation than for images as viewers are less likely to want to tune into an advert-laden video than engage with a post that appears on their feed. Furthermore, authorities across the world differ in their approaches to video advertisement disclosure on social media; the UK's ASA focuses on who has control of the content, whereas the USA's FTC is based on common sense and whether viewers could be misled. Though, the sanctions for incorrect disclosure are the same as for posts, so vloggers do have to be aware of the regulatory requirements, even if they differ slightly across jurisdictions.

Gifts

Gowlessence want to send its new Self-Care Serum to several vloggers as gifts in the hope that the product is used in a "haul" or a "review" video. If this gift is (as in, its gifted without any request to post about it) unconditional, any feature of the Self-Care Serum will not be classified as an advertisement. Additionally, if Gowlessence provides the product to vloggers on the condition that it is reviewed independently, this will also not be classified as an advertisement. In this case, while advertising regulations aren't a concern, the vloggers may want to give a nod to the sponsor to disclose that they were sent the product - to avoid breaching any relevant consumer laws.

Labelling

Where advertorial content is: (i) not controlled by the vlogger; and (ii) of a commercial nature, it must be labelled as an advertisement. Viewers should know that such a video is an advertisement prior to watching the video - finding out afterwards isn't sufficient. The disclosure shouldn't be hidden at the end of a lengthy description or mentioned in the final few seconds. It should be at the top of the description or, ideally, in the video title/thumbnail, so that viewers are aware before they click the link to watch.

Gowlessence thinks that its influencers shouldn't have to make such blatant disclosures. However, while an advert may be obvious to Gowlessence or its influencers, it may not be so obvious to viewers (particularly those that are less savvy). The whole point of advertising rules is so that viewers know the circumstances that may be influencing the content they are watching. If a product is advertised in multiple videos, a separate disclosure should be made in each video as viewers may not watch every video.

Gowlessence is concerned as there are videos available on influencers' pages from previous campaigns featuring Gowlessence products before Gowlessence knew about labelling. While there is only so much that Gowlessence can reasonably do to ensure that this content contains adequate disclosures, there's been at least one case in the USA where an influencer had to update its old advertorial videos. The sooner Gowlessence gets compliant, the less work will be required over the long-term.

Verbal disclosures

The global rules on verbal disclosures are not consistent, but the general theme is that they have to be clear. If Gowlessence's influencers were to begin their Self-Care Serum videos with "Thanks to my friends at Gowlessence for making this possible", this would not make it clear enough to the audience that Gowlessence had editorial control over the content. Verbal disclosures don't have to be awkward - one of Gowlessence's influencers uses it as an opportunity to explain to its subscribers why it chose to work with Gowlessence. Viewers are more likely to subsequently trust the influencer more as such disclosure demonstrates a commitment to transparency.

Live streaming

The guidance from regulatory authorities on disclosures during live streaming is not yet clear. As such, a disclosure at the start or end of the stream alone may not be enough. Gowlessence asks its influencers to make a disclosure at the start of a live stream, and then again at reasonably prominent points throughout - especially parts where the Self-Care Serum is shown or referred to.

Substantiated claims

As with all advertisements, if a vlogger (or anyone creating advertorial content) makes a claim beyond the generic, "the Self-Care Serum makes my skin feel amazing", the advertiser must be able to substantiate the claim. In other words, the vlogger must be prepared to prove that such a claim isn't misleading. It cannot be claimed that the Self-Care Serum makes the wearer instantly more attractive and intelligent - unless, of course, it does.

Previously in this series Gowlessence explored the rules of social media content labels and disclosures. In part four we look at exclusivity in influencer marketing agreements.


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