Blog on: staying on the right side of the CAP Code

Incentivised blogs have sometimes been seen as a potentially grey area of regulatory enforcement, though you only have to look back at the OFT’s action against Handpicked Media to realise that it’s important to stay the right side of the line.

CAP has recently issued some guidance to clarify its own approach to regulating this area though, entitled New words on the blog. The ASA first tackled the subject back in November 2013, where it reminded “bloggers who are paid to write positive reviews or comments about a product or service that they must be upfront with their followers by making clear that it’s advertising”.

Such was the volume of follow-up questions received by the ASA and CAP from bloggers and brands though, CAP has now released this further guidance. The guidance is of course CAP Code specific and in the main based on the CAP’s interpretation of the rules as ASA rulings have to date been limited. However, and as CAP rightly points out, further regulation may also apply in this area such as the Consumer Protection from Unfair Trading Regulations 2008 so this is not a conclusive guide.

Reader Response
Taking a pragmatic and helpful approach to the queries the received following the last guidance, the latest note takes the form of a Q&A (with questions from bloggers, brands and agencies). It’s this practical approach which in many ways makes the guidance useful, and some of the questions tackled are:

”Image-based disclosure of a sponsored post… What are the rules around this? Is it legal? What about those using text readers who may not pick it up if the file/graphic name is unclear?”

”Do ASA only consider a post as being advertising if the blogger has been paid to say something positive? What if the blogger was paid for a non-bias review with no stipulation that the review or article had to be positive?”

”If I give a blogger a piece of content such as an infographic that I have created, and I pay them to put that up on their site on a page with a story that is written by the blogger does that have to be marked as sponsored content?”

Why this matters
With more and more brands trying to engage with consumers online, and blogging becoming a full-time job for some, this guidance is useful to all trying to navigate the ASA’s regulation of the area. As CAP says, there has been limited enforcement to date, but the fact that CAP is now publishing this latest guidance may in fact conversely lead more to becoming aware of the issues and potentially issuing more challenges.

By DMA guest blogger Tom Harding, Senior Associate, Osborne Clarke and DMA Social Media Council member

This is an edited version of a blog that first appeared on and is reproduced courtesy of www.marketinglaw.co.uk