What are the current rules?

With brands keen to engage with consumers in authentic, non-intrusive and natural ways, increased focus has been given in recent years to the need to distinguish between editorial content and advertising.

In light of recent phenomena such as social influencers, product placement and native advertising, the ASA has had to consider how the technology-agnostic advertising regulations apply to the ever-changing, innovative approaches being taken by brands and agencies.

Rule 2 of the CAP code requires that marketing communications (i.e. advertisements) are ‘obviously identifiable as such’. It also states that advertisements must make clear their commercial content, if that is not clear from the context. The basic rationale for these rules is that consumers should know when they are on the receiving end of an advertisement.

There is no concrete rule about how paid-for content should be identified, and the ASA has referred to the ‘technical quirks of each platform’ being relevant to the point at which a brand should identify an advertisement, and how they should do so.

The ASA has previously advised that social influencers should signify their commercial relationship with a particular brand by including ‘#ad’ to posts on Twitter, or an ‘ad’ identifier placed directly above an image on Instagram.

How might these rules be applied to AR and VR environments?

There is yet to be any specific guidance on how advertising regulations might apply to AR/VR experiences.

Just how explicit advertisers and AR/VR experience providers will have to make any paid-for content or product placement is likely to depend upon the type of experience being offered. In the same way that the Committees of Advertising Practice (CAP, which writes the CAP code) and the ASA had to evolve and adapt to accommodate for the explosion of social media brand engagement, they will need to be equally flexible in their approach to AR/VR.

However, inevitably there is a chicken and egg dilemma where CAP and the ASA will have to first wait to see how brands decide to utilise these technologies as well as the extent to which these technologies are embraced by consumers.

Until specific guidance and rulings are given on the use of these technologies for advertising purposes, brands proceed on the basis that the ASA will apply the same rules and standards that it has applied to any other form of advertising.

As with other technologies which the regulators have been forced to address in recent years, the key here will be transparency. There will always be friction between a brand wanting their message to appear as fluidly and naturally as possible, and the ASA wanting to ensure that a consumer understands at the earliest possible stage that the message is promotional in nature.

In the Vlogger sphere, CAP has stated that an advertorial needs to be labelled upfront so that viewers are aware and understand that the content is paid-for/promotional, allowing the viewer to make an informed decision before they decide whether to engage with the content.

We consider it likely that an similar approach will be taken in respect of so-called VR/AR experiences, meaning that content producers will need to flag to consumers at the earliest moment whether the content is paid-for or contains promotional messages.

It remains to be seen to what extent the industry will utilise this new technology but, given its particularly immersive nature, we can be certain that the ASA will be keeping a watchful eye.

Client Alert 2017-290