A group of advertising industry stakeholders is reviewing UK
advertising rules. Its recommendations may include the extension of
regulation to advertising claims on companies' own websites, which
are currently exempt, and videos that appear on sites like
YouTube.
In the US, industry watchdog the National Advertising Division
(NAD), part of the Council of Better Business Bureaus, made clear
last week that YouTube falls within its regulatory remit.
NAD examined a video clip released by Cardo Systems, a maker of
Bluetooth headsets, which appeared on YouTube. It showed people
placing their mobile phones next to popcorn kernels, which appeared
to make the kernels pop.
NAD said it was concerned that, while the scene depicted was
implausible, the video may have communicated the message "that cell
phones emit heat and/or radiation at a very high and unsafe level
and that using cell phones without a separate head-set may be
dangerous to users."
"In non-traditional media, to the extent that advertising claims
are communicated, advertisers are required to substantiate those
claims with competent and reliable scientific evidence," it
said.
NAD did not ultimately rule on the merits of the case because it
found that the video had been discontinued before its inquiry
opened. But it made clear that viral videos and ads posted on
YouTube were within its remit.
NAD cited an earlier ruling as authority that clips placed on
video-sharing websites "when controlled or disseminated by the
advertiser may be considered national advertising."
That case involved an advert for a Dyson vacuum cleaner that
appeared on YouTube. It claimed that rivals' cleaners clog and lose
suction while a Dyson model performs with no clogging and no loss
of suction. One of the featured rivals said that Dyson's claims
were false and based on unreliable and misleading tests. "Dyson's
video depicted a comparative product demonstration and was
therefore advertising and subject to the legal requirement that it
be truthful and accurate," it said.
The UK's equivalent of NAD, the Advertising Standards Authority
(ASA), can only take action over a video on a free site such as
YouTube if that video is promoted by the advertiser, for example,
by circulating a link to the video in an email. If the video is not
promoted, it escapes regulation, the ASA told OUT-LAW. The ASA has
never taken action over a YouTube video, it said.
Other UK laws can apply to adverts posted to YouTube. For
example, a business that falsely creates the impression that a
video is the work of a consumer could fall foul of the Consumer
Protection from Unfair Trading Regulations. That may result in a
criminal prosecution. But such action is rare. In contrast, the
ASA's rulebook, which generally goes further than the legislation,
is applied in several adjudications each week.
The ASA can take action over some viral campaigns but not all of
them. Its rulebook, the CAP Code, makes clear that it covers
adverts in emails and "text transmissions." But the CAP Code also
states that "The Code does not apply to … website content, except
sales promotions and advertisements in paid-for space".
ASA spokesman Matt Wilson told OUT-LAW: "If [an advert] was
appearing on YouTube and was not pushed elsewhere, it might not be
covered. If it's on YouTube it's not in paid-for space."
"Adverts on YouTube or on a company's own websites are not in
our remit," he said. "For example, Tesco could say something on
their website [that breaches the CAP Code] and we can't do anything
about that, but the same statement on a billboard is within our
remit."
Wilson said the position only changes if a company 'pushes' the
video, such as by email, or encourages users to 'pull' the video
from their own website, for example by making it easy for users to
download the clip and circulate it among friends.
UK industry body the Advertising Association set up a committee
to review the remit of the ASA earlier this year. Its Digital Media
Group was convened to put forward proposals for future-proofing the
industry's self-regulation of advertising on digital media and its
report is expected in 2009. A spokesman for the DMG said that the
group expects to make recommendations "within the course of
2009."
The popcorn advert was removed from YouTube by Cardo but the ad
has reappeared on YouTube's UK site. While YouTube does not allow
users to copy videos from its site, it is not difficult for a
tech-savvy individual to do so. Since Cardo does not appear to have
posted that video, it does not control it. However, Cardo could
assert copyright in the video and ask YouTube to remove it.
OUT-LAW asked NAD if it would ask an advertiser to assert
copyright to have a video removed when 'banned' clips are copied by
individuals and uploaded to YouTube; and also whether NAD's
jurisdiction would cover YouTube's UK site, which is visible to US
users.
"We would want to see a good faith effort on the companies' part
in trying to remove the video wherever it appeared, but would be
more concerned about the US site, seeing that our jurisdiction is
the US market," said spokesman Bruce Hopewell in an email.
Jurisdiction appears to be another potential loophole. In the
UK, the ASA's rulebook states: "The Code does not apply to ...
marketing communications in foreign media."
"Direct marketing that originates outside the UK but is targeted
at UK consumers will be subject to the jurisdiction of the relevant
authority in the country where it originates so long as that
authority operates a suitable cross-border complaint system," says
the CAP Code. "If it does not, the ASA will take what action it
can."
