13 December 2010 marked the date of a landmark decision by the Office of Fair Trading (“OFT”) in the UK.  

Handpicked Media is a collective of independent sites and blogs focusing on fashion, beauty, entertainment, food and culture with a shared aim of promoting goods and sharing content. Handpicked Media engaged and paid (along with other individuals that had an online presence, such as bloggers, etc.) members of Twitter to make tweets to promote its clients’ products; effectively to carry out “word of mouth” endorsements/advertising for its clients.

After a six month enquiry into Handpicked Media’a blogging and tweeting practices, the OFT held that it had breached the Consumer Protection from Unfair Trading Regulations (2008), and that it had been misleading consumers by not making it apparent that a number of the tweets had been financially endorsed or paid for by producers of the products being promoted. Under these Regulations, “a commercial practice is misleading if it causes or is likely to cause a consumer to take a transactional decision that he would not have taken otherwise”. They were brought in as part of the EU-wide harmonisation.  

Following this investigation, Handpicked Media agreed to sign an undertaking not to mislead consumers in this way in the future, and to make sufficiently clear when a tweet or blog has been written in return for money. People questioned how this would be possible on Twitter, given the 140 character limitation, but it has been agreed that the “hash tag” symbol will be sufficient for these purposes going forward.  

This decision does not mark a new law for bloggers and tweeters, but it does act as a warning to companies to ensure their practices comply with the Regulations to avoid similar investigations. It is worth noting that these Regulations apply to both online (e.g. Facebook pages) and offline activities (e.g. newspaper or magazine promotions). Where a tweet is really an advertisement, it must be honest about that in the same way as an advertorial in print media.