With advertisers becoming more involved in content production, Victoria Gaskell provides a legal perspective on the increasingly popular media strategy.
The Advertising Standards Authority (ASA)’s decision late in 2014 in relation to brand involvement in videos online highlights a growing trend for greater involvement by advertisers in content. The noise around content marketing and native advertising has been building for a while and much has been written already about the LEGO movie – an example of content marketing at its best. But now we are starting to see this in an increasing number of campaigns – and clearly the regulators are taking an interest too.
Traditional advertising and the law
In the past the only audio-visual material of any quality and that a brand might want to be associated with was movies and television shows. Advertisers have a long history of involvement in movies and certain franchises are as well known for their brand associations as they are for their creative content. Television has always been more problematic – at least on this side of the Atlantic.
A fundamental principal of the regulation of commercial television has been the separation of advertising content and editorial. As a result, both sponsorship and product placement on television are heavily regulated. Despite some liberalisation of the rules on product placement in early 2011, the fact remains that brands cannot get the level of exposure that they want within programmes on television and broadcasters are restricted from guaranteeing exactly how much exposure they will get (if any.) The rules (which stem from the EU Audio-visual Media Services Directive) only allow product placement in certain types of programmes (dramas, entertainment and sport broadly) and in any event prevent brands being featured in a way that is unduly prominent.
Brand-customer engagement is changing
But quality content is no longer restricted to television and the cinema. The vlogging community has become more professional – thanks to help from platforms like YouTube as well as the services and investment provided by multichannel networks (who themselves are seeing significant investment from traditional media companies) – brands have sought to engage customers using vlogger content as well.
It is not just about the quality of the material available to advertisers online. There is also the growing audience and the global reach of online platforms. Plus the way in which consumers engage with advertising is changing.
A large proportion of television viewing is done either on catch up services or using a digital video recorder giving viewers the opportunity to skip advertising breaks entirely (arguably sponsorship bumpers have become more important as a result if only because viewers use these to tell them when to stop fast forwarding.) Despite the promise of truly targeted advertising online and the potential for ever greater data capture about consumers, advertisers still question the value of online banner ads. As a result they need to find way to better engage consumers and using online video content is one of these.
Native advertising: the appeal of less regulation
Another advantage for brands of this strategy is that the online world is much less heavily regulated than television or cinema. There are of course rules that apply to some online services; the online catch up services provided by the major networks as well as standalone subscription on demand services are bound by rules which are similar to those that apply to linear television channel. These services are considered sufficiently equivalent to television to require a similar degree of regulation. For example, rules about sponsorship of content by cigarette and alcohol brands apply as does a ban on sponsorship and product placement around news programming. And signalling is required to ensure that viewers are aware if advertisers are involved in the content.
Away from these TV-like services though there is very little regulation. The legislation preventing misleading marketing communications applies – and it is with that legislation in mind that the ASA made its recent decision – but otherwise there is little to regulate the interplay between editorial and advertising content. Clearly there will be a degree of self-regulation by vloggers themselves. Their audiences are hard won and the success of their channels (and, increasingly, brand extensions) depends on their relationship and trust built up with their viewers. But overall advertisers have greater freedom.
Levelling the advertising playing field?
Going forward we should expect to see more brands engaging with content online – particularly those concerned with targeting the younger demographics. This might be through product integrations with vloggers or might involve brands creating their own content. The latter happens already of course – the release of the John Lewis Christmas ad is a perfect example (most people will have watched that for the first time online – not on television) and companies like Red Bull have been doing this for years. But as a result we are also likely to hear more calls from the traditional media sector for the playing field to be levelled – the disparity in regulation arguably puts them at a disadvantage when it comes to accessing funding from brands for content. Although bearing in mind that the principal of separation of advertising and editorial that applies to television is derived from an EU directive and given the time frame required to implement legislative change in Brussels this will be something of a long game.