Disclosing A Brand Affiliation In Video Content
By Kimberly I. Culp
Many brands use individuals, often referred to as influencers, to disseminate positive brand messaging. These influencers use their own social media accounts to show their use of a brand’s product or service. Many influencers are paid for their services while others receive in-kind value for their posts, such as free products or services, trips to venues associated with the brand, and other kinds of valuable compensation. Regardless of how they are compensated, these all represent examples of a material connection between that influencer and a brand. Any influencer who has a material connection to a brand must disclose that connection in their social media posts.
One mode of delivering a positive brand message is with videos (produced or live-streamed). Videos pose some unique challenges to make sure that a consumer will receive the influencer’s disclosure of a material connection between it and the brand.
Who Must Comply
The influencer, any intermediary representing the influencer, and the brand must all ensure that the relationship between the influencer and the brand are adequately disclosed. However, the brand is ultimately responsible for what is done on behalf of the brand. Therefore, the brand should make sure that any intermediary has an appropriate program in place to train and monitor the influencers acting on behalf of the brand. The intermediary must actually conduct the training and monitor the subsequent posts. Of course, if there is no intermediary then these responsibilities fall to the brand itself. Even if there is an intermediary, it behooves the brand to monitor the social media posts made on its behalf.
Thus, although it is the influencer clicking “post”, “upload” or the like, it is imperative to the brand, amongst others, that the following disclosure obligations are satisfied.
An influencer creating a video (whether or not live) about a brand to which the influencer has a material connection should do the following:
- Disclose the relationship at the beginning of the video both verbally and in writing, in a cadence that affords the viewer an opportunity to read or hear the disclosure;
- The disclosures must be in clear, unambiguous terms;
- Include written disclosures in the video description or caption that will appear without requiring the consumer to take any action (such as by clicking “more”) to view the disclosure on the published platform; and
- Repeat the written and spoken disclosures at appropriate periodic intervals through any lengthy video.
To the extent that a social media site has tools that an influencer can use to disclose a material connection with the brand, those tools may or may not be sufficient to disclose the connection. To be clear, use of tools embedded in the platform is not per se an adequate disclosure of the material connection. The overriding concern for all those associated with the video is that a consumer viewing the video will understand that its creation is associated in some material way with the brand referenced.
Let’s use the live stream of a video game as an example. When the video gamer starts the game play, they should have a written disclosure on the screen as well as a spoken disclosure identifying their connection with the video game brand. That disclosure should use clear, concise, verbiage, such as “VIDEO GAME COMPANY provided me with an early release of GAME X, which I am now about to play for you.” If the game play lasts for a significant period of time then this disclosure should repeat. Such as, “Friends, just wanted to give a shout out to VIDEO GAME COMPANY, which provided me with an early release of GAME X so that I could play it for you.” This disclosure, as with the first, should repeat as text as well as audio. In addition, the description or the caption of the post should disclose this connection. A good rule of thumb is that the disclosure should appear by no more than three lines into the description, and if there is no option to provide a description, then the disclosure should appear in the caption. This might look like “Watch me play an early release of GAME X provided by VIDEO GAME COMPANY.”
It is a best practice that the brand control the disclosures in a way that complies with these disclosure obligations. Although the brand can, and likely should, try to have fun with the disclosures, the goal should be to communicate in a clear and conspicuous way the connection between the influencer and the brand. How to best do that is a fact-driven inquiry in almost every instance.
Kimberly I. Culp is an attorney in Venable’s Advertising and Marketing Litigation Practice Group in San Francisco, CA.