What constitutes “editorial control” for the purpose of determining whether video content is an advertorial?

ASA Ruling on Wahoo Fitness (UK) Ltd (15 November 2017)

The facts 

The YouTube channel Global Cycling Network (GCN) uploaded two videos, both featuring  Wahoo Fitness (Wahoo) products: 

• Video A featured a vlogger introducing the Wahoo product to viewers by unboxing it, giving  viewers the chance to win it, and discussing its different features and how to use it. Text  beneath the video stated “[t]hanks to Wahoo Fitness for the products used in this video.  All views expressed in this video are the presenter’s own” and further down read “[t]hanks  to our sponsors…” before listing various sponsors, including Wahoo, and 
• Video B featured two vloggers devising a challenge using the Wahoo product. During the  video, a voice-over stated the product’s uses and different features, and the video ended  with one of the vloggers inviting the viewer to learn more about the product by clicking on  links to other content. The same text stated above appeared beneath the video. 

The complaint 

The complainant challenged whether the ads were obviously identifiable as marketing  communications. 

The response 

GCN confirmed that they had a commercial relationship with Wahoo but described Wahoo as  a sponsor only. They denied that the videos were advertising because Wahoo did not have  any editorial control over the content – their influence was limited to fact-checking technical  details of the product. 

The contract between the parties included an agreement that Wahoo would pay GCN for three  Wahoo-branded videos, in which the content and subject would be agreed between the  parties. The contract required an “unboxing” video and a competition for Wahoo products to  be featured on the channel. The contract also specified that the GCN presenters ride with  Wahoo head units in all “relevant” channel content during the three year term of the contract.  Wahoo also said that they believed the videos to be part of a sponsorship deal as opposed to  advertisements. They confirmed that they had supplied Wahoo products to GCN for the  videos. 

The decision 

The ASA upheld the complaint. 

The first question was whether the videos were advertorials and therefore within the remit of  the CAP Code. Advertorials are defined in the Code as advertisement features in which the  content is controlled by the marketer as opposed to the publisher and there is a reciprocal  relationship, for example dissemination in exchange for payment. 

The ASA found that the videos were disseminated in exchange for payment, as they were  produced in the context of the financial agreement between GCN and Wahoo. 

When considering which party was the controller, the ASA accepted that merely fact-checking  details of a video is not enough in itself to constitute editorial control.However, the ASA found  that Wahoo was in fact the controller in respect of both videos: 

• In relation to Video A, GCN was contractually bound to “unbox” the product and to run the  competition. In addition, the contract stated that the content and subject of the video was  to be agreed between the parties in advance, and 
• In relation to Video B, the GCN presenters were bound to ride wearing the Wahoo head  units in all “relevant” content. The ASA noted that the wording allowed the parties to  determine which content would be “relevant” and that the specific content of the videos  was not stipulated. However, the fact that GCN were nevertheless contractually obliged to  feature the head units in any content deemed “relevant” during the term implied that  Wahoo, and not GCN, were the party in control and therefore the video constituted an  advertorial. 

The second question was whether the advertorials were obviously identifiable as marketing  communications. The ASA considered that the text beneath the videos was insufficient to  clearly identify the videos as advertisements and, in any case, noted that the description box  was not immediately visible. The ASA also noted that there was nothing within the video  content to indicate that the videos were advertising. The ASA therefore found that the videos  were not identifiable as marketing communications and therefore were in breach of the Code. 

Why is it important?

This decision makes it clear that the ASA construe the concept of “editorial control” broadly. Even though Wahoo did not have any influence on the script or other specifics of the video  content, they were still deemed to be the controllers, ostensibly because they had been fairly  prescriptive about how the products would appear in the videos. 

Notably, the ASA interpreted ambiguity against Wahoo. They appeared to have construed the  term “relevant” objectively, by accepting that wherever there was a relevant video, GCN were  obliged to feature the product. No consideration was given to the possibility of GCN having a  degree of discretion as to whether content was relevant or not. 

Any practical tips? 

If you want to enter a commercial agreement as a sponsor, do not be overly prescriptive as to  how your product is shown or used. Refrain from specifying a format, and definitely do not  oblige the other contracting party to feature the product in particular content or by reference to  a particular descriptor (eg “relevant” content). 

The decision is also useful in that it appears that reserving the right to fact-check technical  details of a product does not in itself constitute editorial control.