Who: Advertisers using Periscope
When: March 2015 to the present
Law stated as at: 2 June 2015
Following Periscope’s launch on Android at the end of May 2015, advertisers and marketers are expected to start taking advantage of its ability to live stream video content globally, and almost instantly.
Consider whether people will feature in your Periscope stream. If you are filming in a public location, you must consider the privacy rights of each individual participant featuring in your stream before you arrive at your location. Any individual participants featured in your stream without consent may object to their appearance on the basis of breach of the Data Protection Act 1998, misuse of private information, breach of the CAP Code privacy or in the case of well-known personalities who are able to leverage their image, passing off.
Consent is the key, so give each individual participant the opportunity to refuse participation before filming. If an individual participant agrees to be filmed, ensure that this agreement is expressly obtained with the understanding that the filming will be streamed on Periscope. Release and consent forms should be fully signed and completed before any filming.
Particular care should be taken with children as parental consent will be needed and a licence from the local council in order to comply with child performance laws.
Filming is not permitted everywhere. Therefore, you should check whether you can film or need to obtain permission to film in your desired location. If you do need permission, make sure that this is obtained in advance and that the location understands that the filming will be streamed on Periscope. In addition, if you have paid to enter a location, you should check whether the terms and conditions of your entry or ticket permit filming.
The purpose of your stream will be to advertise a product or service, so do not forget that so long as the content is under your control, consumers and competitors may complain to the ASA and your ad may breach the CAP or BCAP Codes. For example, consider whether:
- (a) the content of your stream or the age of your target audience may affect the time that the stream should be broadcast;
- (b) the stream will have to be “obviously identifiable as a marketing communication” so for example it will need to be appropriately hashtagged (such as ‘#ad’ or ‘#spon’), if it features a celebrity or blogger/vlogger, who has been paid or sponsored to feature in the stream;
- (c) in the event of a promotion, how the terms and conditions can be clearly and effectively displayed to viewers;
- (d) the claims made can be substantiated. For example, a stream obtaining public opinion may be risky, because a claim made by the public that is shown on the Periscope stream of a brand may appear as a claim of that brand, so substantiation should be in place before streaming. CAP guidance on use of testimonials should also be checked and observed. All this may be very difficult to achieve when using Periscope due to its live nature, but this will not be a viable defence to any enforcement action;
- (e) your stream needs any on-screen text or a description to ensure that consumers will not be misled; and
- (f) the events that may occur in your streaming location are within your control. For example, if you are streaming from a public location, you may not be able to control who may suddenly appear in front of the camera or what might be said or heard out of shot, which may lead to an unintentional breach of the CAP and BCAP Codes, or even worse.
A key risk of live streaming is breaching intellectual property rights. You should obtain consent from the owner of all relevant intellectual property rights before filming or scope out your location and participants carefully. Intellectual property rights could appear anywhere, such as on buildings at your location (logos on shops) or the clothing of individual participants (branded clothing). Also, do not forget sounds! If you have a song playing in the background, this will probably require authorisation before broadcasting.
Why this matters:
Periscope is still very new but advertisers and marketers must not forget that advertising regulation and laws still apply. In particular, the live nature of Periscope means that preparation is vital as there is no time to review or edit any copy made. Streams on Periscope may expire after 24 hours, but that is sufficient time for many people to view and make a copy or screenshot of the stream, which can act as evidence in the event of an ASA complaint.
In addition, in March 2015, it was reported that the ASA is “looking to do more” on Vine. Vine (which like Periscope is a video sharing app owned by Twitter) is a popular platform for advertising as it has over 40 million users. As Periscope increases in popularity, it is likely to only be a matter of time before the ASA considers moving Periscope into its focus.