The Advertising Standards Authority for Ireland has recently published guidance in relation to the recognisability of marketing communications. This supplements provisions of the ASAI Code of Standards for Advertising (the "Code") and provides helpful clarifications regarding the ASAI's expectations, particularly regarding how to identify marketing communication ("Marcoms") on social media.
The ASAI is the advertising industry's selfregulatory body, which aims to maintain standards in Irish commercial advertising through monitoring compliance with the Code. The Code applies to all types of Marcoms, including those made through social media, and provides a general rule that all Marcoms should be clearly identifiable as such.
The guidance develops this general rule with the following:
a) Sponsorship/endorsement where a celebrity (or other individual) is sponsored by a company or brand, or a payment is made to a celebrity in relation to their promotion of a company or brand, any social media posts by the celebrity in relation to the company or brand will be deemed to be Marcoms. The ASAI indicates that where this is not obvious, the poster should `flag' that the post is a Marcom, eg by including `#ad'. It is worth noting that where the company or brand has no control over the content produced by the individual, it is not likely to be considered a Marcom, however, best practice would still be to disclose the commercial relationship;
b) Paid reviews - where (i) a reviewer is paid (directly or with free products) to write a review; and (ii) the company or brand has significant control
over the content of the review, eg by insisting that the review be positive; any material posted will most likely be considered a Marcom and should be identifiable as such. This principle also applies in the case of bloggers or vloggers;
c) Visibility of disclaimers - any disclaimers should be visible to consumers before they interact with or read the material, ie they should appear above the fold, and inclusion of such disclaimers in the relevant terms and conditions or at the end of the piece will not be considered sufficient; and
d) Clear division of types of content - where a post or piece is a mix of independent review and Marcom (eg paid-for review), and it is not obvious which parts are Marcoms, the poster or author has a responsibility to make this clear.
As paid social ads grow in popularity, this guidance will help brands and advertisers to ensure compliance with the Code and minimise the chance of a successful complaint being made to the ASAI, along with the associated negative publicity. It could also be used to ensure compliance with applicable consumer protection legislation including, in particular, the Consumer Protection Act 2007.