Video is Powerful ​- But the law is too

28 June 2017

Author: Olivia O'Kane
Practice Area: Media and Defamation

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The use of video for marketing purposes is increasing exponentially, with 61 per cent of businesses now using video to reach and engage with their target audience, according to a recent Wyzowl report.

With more people than ever before watching this content on smartphones and other electronic devices, brands are responding. The Internet Advertising Bureau UK said that in 2016 digital ad spend grew to £10.3 billion in 2016, up 17.3 per cent on the year before. Video was the fastest growing format up 56 per cent on a like-for-like basis since 2015

As companies set about employing agencies to produce content and also creating their own material it is important that they bear in mind certain legal considerations, starting with consent.

If anyone is identifiable in your video content in law they are known as a data subject. You must ensure that you have obtained their consent for the specific purpose of recording and inform them in advance as to where that content shall be made available. Often an opt-out form is the most practical and easiest method to ensure that data subjects, such as attendees at a video feed conference, understand the purpose of your content and that they are given the chance to ‘opt out’ of being identified in the footage.

If you are gathering, storing or using information about any living individual then you must consider data protection. As the author and creator of the content you are not only a data controller, but you are also the person legally responsible for all of that content.

The Committee of Advertising Practice Code regulates online videos so it is important to ensure that you are familiar with the legal obligations imposed upon you. Do not infringe copyright or trademarks. For example, before you use a client’s logo you must seek their express authorisation to do so; before using background music to complement your video you must ensure that you have legal permission to use the musician’s work.

It may sound obvious but do not defame your competitors. Also be sure to avoid using any private information belonging to someone else. Ensure that your content complies with fair advertising regulations and that you do not mislead the public.

If you are advertising to consumers then you should also consider the legislation and regulations relating to consumer protection from unfair trading. Certain unfair practices are prohibited under The Consumer Protection from Unfair Trading Regulations 2008. So disclose all paid for endorsements and sponsorships and do not mislead the public. Some vloggers remiss and fail to be up front about this but it must be clear to consumers that the content is marketing communication, an advert or that it contained paid-for content.

The guiding principles of advertising include that the content should be legal, decent, honest and truthful, be organised with a sense of responsibility to consumers and the public so it is important not to mislead, cause harm or serious or widespread offence.

If your video is placed on the internet, don’t forget that publishing on the web means that the content could be challenged in other countries, and the laws governing defamation or intellectual property might vary from country to country.

If your intention is to create content that is distributed to mainstream media, the legal considerations do not change in so far as your own legal responsibility for that content. The official publisher or broadcaster will always carry out their own legal compliance of the content for distribution on its official platforms, but that does not absolve you from your own legal responsibilities as outlined above.

The creation of videos is a significant marketing tool and has proven to be of great value to many businesses. However, getting it wrong could result in legal implications and damage your business reputation beyond repair. If you have any doubts as to the compliance of your content, we recommend that you seek legal advice.

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