Advertising in the YouTube age.

• Author: Pry, Carl G.

Recently, banks have seen new methods of getting out advertising messages electronically--including via e-mail, on the bank's Web site, or even instant message or text messages to cell phones.

But what about creating a "viral video" message and distributing it on a video-sharing Web site such as YouTube? (See "Creating an Online Video," p.26). Are there any regulatory issues to be concerned about? The pace of regulation always lags behind that of innovation, but it turns out that in this case, things really aren't all that different.

The first question to consider is whether or not these videos are considered "advertisements." The answer depends on your reason for putting the video together. FDIC advertising rules (which apply to all banks) define an advertisement as "a commercial message, in any medium, that is designed to attract public attention or patronage to a product or business." [12 CFR 328.3(a)]

The "in any medium" part covers electronic messages sent to cell phones, in e-mails, and yes, uploaded to YouTube. But the latter part of the definition ("designed to attract ... patronage") truly determines whether regulatory requirements apply.

The first issue to address is who put the video together. In other words, did your bank have editorial control over the video's content? If the answer is no, then the rules don't apply, which makes sense: How can you be held responsible for messages you have no control over? But if you do have some say in the content, even if in collaboration with others, then the rules still may apply depending on the answer to the next question.

This is a big-picture question: Why are you putting together and posting the video? If it's to attract or generate business (loans, deposits, etc.), then it's clearly an advertisement for compliance purposes. More on what that means in a minute. But what if the subject of the video has nothing to do with your bank? What if it's not even about banking in general, but takes place in your bank premises? Or maybe your...