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When earned media isn’t earned, Part II

[ photo courtesy ]

So my previous post ruffled a few feathers. And Claus at GoViral was kind enough to respond to my questions via email, for which I’m very grateful.

The GoViral video player itself is branded as providing sponsored content, and if you want to get paid, you have to embed the GoViral player, so disclosure box ticked there. But my worries were around the additional activity that GoViral were happy to fund:

There is additional budget available for posting, commenting, tweeting, social bookmarking the videos as well as writing articles, creating a page and uploading the content on other websites so that users can interact and comment on the videos. Let us know if you are keen for any of these options as well.

Blog posts, comments and tweets aren’t controlled by GoViral, and dependent on the publishers (as GoViral calls the bloggers it recruits) to include the relevant disclosure. So my question was whether it was a mandatory part of the agreement between GoViral and its publishers that they were obliged to disclose that these blog posts, comments and tweets had been paid for by the brand in question.

Because, if not, then they’d be breaking the law.

Schedule 11 of The Consumer Protection from Unfair Trading Regulations 2008 states that: “Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer” is considered an unfair trading practice (see here for IPA briefing note on the implications of the act for advertisers).

As Rachel Clarke’s Guardian article points out, this is also the case across the EU. And that new FTC regulations in the US went even further

The FTC has approached social media marketing from a different angle to the UK, bringing it all under the updated guidelines about endorsements. The 81-page document carries a lot of information about using celebrities and experts to promote your product. Sprinkled throughout – and taking a lot of space in the introductory commentary – is the digital world of blogging and social networks. This seems to go far further than the EU laws.

There appear to be three main areas of impact:

  • A blogger can be considered an endorser of a product if he is directly paid, if the value of the product/service is “high” (although no guidance given) or if he regularly receives free products for review due to his online influence. This includes people who are part of buzz networks, signing up to receive products for review.
  •  

  • Both bloggers and advertisers are responsible for statements made. A blogger can be held liable for any false claims.
  •  

  • It is the endorser’s responsibility to disclose all relationships, although advertisers have to monitor disclosures and take steps if they are not happening.

Transparency and disclosure are therefore not only considered to be a given by the likes of Forrester when praising the merits of sponsored conversation, they’re mandatory under the law.

I don’t particularly like what the likes of PayPerPost do – and would question the value of sponsored conversation for brands in the first place – but at the very least they make it crystal clear that disclosure is absolutely fundamental:

Mandatory Disclosure

Every sponsored conversation facilitated directly by PayPerPost or through one of our services is required to have disclosure. Bloggers that do not disclose are not permitted to participate in any PayPerPost sponsored conversation and will be removed from our network.

Honesty of Opinion

Bloggers are free to write or say whatever they want. PayPerPost has no restrictions on how bloggers express their genuine thoughts on an advertiser’s product or service. PayPerPost will neither withhold payment based on a negative conversation, nor do we allow advertisers to force bloggers to edit their post to remove critical statements, ever.

Claus was kind enough to answer my questions, and the below is copied from his email (NB please also note that I advised that I wanted to publish his answers on the blog, and that I preferred to use his own words so that I did not misrepresent him, therefore he was fully aware that I wanted to make this correspondence public before responding):

At the end of the day though I guess it is also up to the publishers as we don’t control their sites they do. We can flag it in the player, but they decide how to implement content on their sites… I don’t think there is such a mandatory actually, not sure of the legalities to be honest. We flag it in the player so don’t know if that would be required as well. I am not a legal expert

To his credit, Claus also admitted that “it does makes sense to make it clear in the T&Cs that publishers has responsibility flagging it” and that he had advised the GoViral publishing department to look at changing their T&Cs to include this. He has stated they “want to act within the law of course and are of course also happy to disclose that it’s sponsored content”, and that whilst the “2008 act has been considered in relation to the “sponsored by” on the player that is not to say that what we do is exhaustive, there might be room for improvement.”

Props to GoViral for admitting that things could be improved, and I appreciate that they’re looking into changing their T&Cs. And it doesn’t appear that the non disclosure is wilful. But it’s not as though these are nice-to-have ethics, it’s fundamentally about legal compliance as much as doing the right thing. And as it currently stands, if GoViral publishers are blogging, commenting and tweeting about Stella Artois without disclosing that they’re being paid, it would appear to my non-legal expert mind that according to the aforementioned consumer protection act, Stella would be breaking the law (however if brighter legal eagles than I can advise if I’m misinterpreting the regulations, I’d be hugely grateful).

It worries me that as marketing departments are frantically trying to work out what their ‘social media strategy’ is, and as many struggle with the contrast between the slow-build, non-guaranteed world of earned media vs the quick-build, guaranteed-reach world of paid media, that the temptation to go for the easy route of pay per post will be strongly appealing. And whilst I would always strongly advise my clients against the sponsored conversation route, if brands do decide to go down this route, as long as they’re looking at full disclosure, then it’s at the very least compliant and broadly ‘ethical’.

But it’s far from inconceivable that the more quick fixes that are sought, the more non-compliant, unethical posts, comments & tweets that may slip through the net (whether knowingly or otherwise).

Ciaran pointed out at last night’s IAB debate, paid media is paid, and earned is earned, and you can’t confuse the two. I’d like to think that’s true, but I suspect it’s more than you shouldn’t confuse the two, not that you can’t…

1 Comment  »

  1. I’ve just got an email from them, for a different campaign. I’m actually a fan of the campaign, so no problem, but they don’t mention disclosure!

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