24/08/2015

By Nora Grassmair, Solicitor, Thomas Eggar LLP

Writing a blog or vlogging (video blogging) about what interests you (e.g. food or travel) is becoming more and more lucrative, with many bloggers and vloggers succeeding in making it their full time occupations.

However, trouble is brewing after a blogger from wrapyourlipsaroundthis.com arranged to visit a patisserie called Anges de Sucre in Kensington. There are two sides to the story (you can read both in full using the links below), but the blogger initially contacted the shop to ask is she could review its products.

The store agreed and handpicked a basket of culinary treats for the blogger to sample free of charge. The problem came about when the blogger turned up at Anges de Sucre and asked for much more than the owner had bargained for, nearly £100 worth of goods. The store declined and the blogger consequently posted negative comments about the patisserie on Instagram and Twitter.

http://www.angesdesucre.com/blogs/anges-de-sucre/41480452-blackmailed-by-a-bloggerhttp://wrapyourlipsaroundthis.com/

Here are other key legal issues, considerations and pitfalls for bloggers and vloggers to be aware of:

Online endorsements — is it advertising?

The Committees of Advertising Practice (CAP) recently issued new guidance for vloggers, which deals with issues such as advertorial vlogs, product placement, sponsorship, and how vloggers should and should not promote their own product.

This new guidance follows last year’s ruling by the Advertising Standards Authority on Mondelez UK Ltd, which identified a breach of the CAP Code. CAP emphasises in its guidance that it does not object to vloggers or anyone else creating editorial content entering into commercial relationships, but if they do so they need to be clear and up front about this to ensure that consumers are not misled.

The key principle to remember is if content is not controlled by the blogger or vlogger but by the marketer and is in consideration for payment (including, importantly, so-called ‘free’ items), then it must be clearly labelled as an advertisement.

It is important that paid-for advertisements are clearly marked. The Competition and Markets Authority (CMA) notes that around 6% of consumers rely on blogs and vlogs when deciding to make a purchase. This only emphasises the importance of being open and honest about endorsements to ensure that compliance with consumer protection laws, and in particular the Consumer Protection from Unfair Trading Regulations 2008.

Have data protection obligations been considered?

Bloggers and vloggers may be considered the data controller of their subscribers’ or followers’ personal data. For example, they may receive personal data as part of a competition they are running.

It is important for bloggers to not only understand the obligations imposed on them under the Data Protection Act 1998 (DPA) and the responsibilities that come with them, but also to register with the Information Commissioner’s Office (which the DPA requires all non-exempt businesses to do) as a data controller. The definition of businesses, importantly, includes sole traders, i.e. bloggers and vloggers.

It is advisable for bloggers to ensure they have consent before processing anyone’s personal data, and to have a clear privacy policy in place.

Does the blog have an acceptable use policy?

Bloggers may wish to consider implementing an acceptable use policy on their blog, which sets out rules and standards when using interactive services offered on the website such as commenting on blog posts. Having such a policy will allow the blogger to remove offending material from its website, but also to suspend or permanently disable a subscriber’s right to access the website.

Are your Intellectual Property Rights protected?

Many bloggers and vloggers have become very successful online entrepreneurs by building up a reputation and brand. If they feel it important to protect their brand they could consider registering a trade mark and placing a copyright notice on their website. They would also be wise to take legal advice in ensuring that their intellectual property rights are protected.