Category: Blogging

New podcast: Adventures in Information

artworkYou might be interested in a new podcast I’m making called Adventures in Information.

On the surface it’s about freedom of information, but also data protection, politics and, primarily, anything interesting that has been found out using freedom of information.

I’ll be talking to a diverse range of people involved in (or enthusiastic about) FOI, from journalists to solicitors and advocates/agitators.

Tune in! You’ll find all the information you need on the podcast website, including links to the podcast page on iTunes and the RSS feed to subscribe using other apps. You can also play the episodes directly there.

Episode 1 is now available – I talk to Simon McGarr about the Department of Education’s primary online database and how all is not as it may seem.

Undisclosed advertorial in blogs and social media

It is commonly misconceived that blogging and social media are regulation-free publishing forums. In fact, most of the laws that apply to traditional publishers apply equally to blogs and, sometimes, social media posts. Particularly important is the prohibition on undisclosed paid promotion in editorial content, also known as “advertorial” or “surreptitious advertising”.

Readers will be familiar with advertorial content in printed publications: it is usually surrounded by a border that marks it apart from proper editorial content and is headed by phrases like “Commercial Feature” or “Advertisement”. Whatever method is used by the publisher to differentiate it from other content, it is usually clear that someone has paid for it to appear.

Marking such content apart is good, ethical editorial practice in the interests of consumer protection. The Advertising Standards Authority of Ireland code of standards requires this:

Advertisement promotions should be designed and presented in such a way that they can easily be distinguished from editorial material.

The ASAI is an industry-run, self regulatory body and can only impose sanctions on its own members. It is sometimes accused of being toothless but most major companies and advertisers tend to comply with its rulings. However, because it is an industry body not backed by legislation and which can impose sanctions on members only, it is commonly believed that there is no specific legal prohibition on this conduct. An article in the Irish Independent earlier this week said:

There are no strict guidelines for bloggers and influencers when featuring sponsored content, but according to the Advertising Standards Authority of Ireland, sponsored online content “must clearly state that the material is a marketing communication”.

This is not the case, failing to identify paid editorial content is a criminal offence.

The relevant law is section 55(1)(q) of the Consumer Protection Act 2007 which states that, among other practices, a trader shall not “use editorial content in the media to promote a product (if a trader has paid for that promotion) if it is not made clear that the promotion is a paid promotion”.

The Consumer Protection Act implements the European Union Unfair Commercial Practices Directive which categorises this type of advertising as conduct that “shall in all circumstances be regarded as unfair“. This means that it is “blacklisted”: no case-by-case assessment is necessary. (Surreptitious advertising on television is prohibited elsewhere by the Television Without Frontiers Directive.) It might not be sufficient to merely identify advertorial with a simple phrase or logo: the Hungarian Competition Authority found that editorial content which included a slogan “Sponsored by Vodafone” was not enough to identify the nature of the arrangement between the publisher and the advertiser.

The prohibtion applies to the “media”, which is not defined but it appears widely accepted that this includes blogs and even social media accounts.  In the UK, for example, the then Office of Fair Trading carried out a targeted campaign some years ago requiring PR companies and celebrities to be transparent about their endorsements. The basis of this clamp down on undisclosed advertising was the UK equivalent of section 55 of the Consumer Protection Act.

The definition of “trader” in the Consumer Protection Act is wide enough to cover both the advertiser and the publisher/blogger and indeed some enforcement action in other Member States has been against both parties. In Ireland, the Competition and Consumer Protection Commission (formerly the National Consumer Agency) can prosecute breaches.

The penalties include a fine of up to €4,000 on summary conviction (or €60,000 on indictment) and/or jail. The Act provides for increased fines on subsequent conviction and daily fines if the conduct continues after conviction. The Irish courts tend not to impose significant fines for consumer law breaches of this nature and anyone prosecuted for such an offence in Ireland is likely to face a fine in the hundreds of euros if convicted or could benefit from an alternative to conviction (certainly for a first offence). Consumers can also bring an action for damages, though it might be difficult to establish loss.

It seems unlikely that the Commission will become active in this area unless it receives complaints. However, anyone can apply directly to the Circuit Court or the High Court for an order to stop someone who is in contravention of the prohibition, perhaps making private enforcement by competitors more likely than by the Commission.

Blog birthday

I started this blog a year ago today, with a tentative and fairly dull post about television licences. It has developed from there and is, I hope, less dull at times.

To “celebrate”, I joined some colleagues at 7 am this morning for a paper day. This sounds innocuous, but basically involves rooting out endless boxes of dormant files and dumping them into a large room where they can be reviewed and marked for shredding, if appropriate. So paper day involves a good deal of heavy lifting and results in a physical manifestation of the next item on the agenda: sorting through all these files.

Old files
The next episode

There is an upshot to this type of admin work, like coming across the thirty year old file of a client you talked to yesterday. For someone at the junior end of the profession, it’s a lesson in client care.

Also, some souvenirs, like this piece of nameplate: relic of the long-gone Foynes sub-office.

Nameplate
Relic of sub-offices past

Solicitors still have branch- and sub-offices, but these days they tend to be reasonably far apart. From the 1950s-80s, when car ownership was less common, many solicitors had a sub-office in a number of towns surrounding the home base and one afternoon of each week would be spent in Askeaton, another in Foynes (each of which only about 20 minutes from Newcastle West).

I’ll keep an eye out for the unusual and interesting for future posts in this second blog year.