The Advertising Standards Authority (ASA) is the UK's independent regulator of advertising across all media. It applies advertising codes that are written by the Committees of Advertising Practice (CAP).
If an advertisement is the subject of a complaint to the ASA, the ASA has the power to investigate and adjudicate in accordance with the codes. It will publish its decision, which can lead to adverse publicity if the complaint is upheld, with the press often picking up on more notable adjudications. It also has a dedicated area on its website where it names and shames non-compliant advertisers. For more serious offences, it can restrict the advertiser's access to advertising space, as well as being able to direct the removal of paid-for search advertising. Since November 2013, it has Trading Standards as its legal backstop.
In March 2011, the ASA's remit was expanded so that, for the first time, it began to regulate marketing communications on advertiser's own websites and in other non-paid-for space online under their control, such as Facebook and Twitter. This piece looks at how this new remit has played out in relation to social media.
When using Twitter, there is, by necessity, a tendency to adopt a snappy approach. When it comes to advertising, this can lead to difficulties in complying with the advertising code which requests that adverts are not misleading, harmful or offensive.
The ASA expects advertisers to make it easy for the average consumer to be able to judge whether or not they are seeing an advertisement in social media. The ASA has suggested that advertisers use #ad to make it obvious, or in the case of sponsored claims #spon.
Where a business sponsors, for example, a celebrity to endorse its products, it would be best advised to require that celebrity to seek prior approval before tweeting promotional material, ideally from somebody within the business with a good grasp of the CAP Code. The PCH adjudication discussed below demonstrates that a business can be found to be liable for the content of these sorts of tweets, even when they have not encouraged them.
The ASA's remit extends to user generated content where it is adopted and incorporated within a business' own marketing communication (whether on its own website or in other non-paid for space, for example on Twitter). Advertisers who encourage their target public to engage with their campaigns and create content will have to review whether and when that content will fall within the remit of the Code. Retweeting positive tweets from customers is likely to involve the adoption and incorporation of user generated content. Before retweeting, for example, positive tweets from customers, the business should consider whether the content of the original tweet is compliant with the CAP Code. In particular, is it in any way misleading, harmful or offensive?
Obviously, when you are confined to 140 characters, there is a limit to what you can substantiate. The ASA have indicated that obvious exaggerations, claims that are unlikely to be taken literally and clear statements of opinion are unlikely to need substantiation. The ASA "allows for puffery". However, when making claims that are likely to be taken literally advertisers should bear in mind that the ASA could well require substantiation of the claim.
Some recent cases illustrate the ASA's approach to the most frequent issue, that consumers might not realise it is a promotional message:
Genting Alderney Ltd (trading as Publishers Clearing House)
Genting Alderney Ltd were caught out following a tweet from Keith Chegwin's Twitter account which read: "Just a quickie: Log on to pchprizes.co.uk 4 Your chance 2 win £100k plus Win £2,500 a week 4 life. Have a go X". Unlike in the first Nike ASA adjudication, Publishers Clearing House (PCH) said the tweet was not prompted by them, nor did they play any role in deciding its content: Keith Chegwin had sole editorial control. However, they did have a promotional relationship with Mr Chegwin but there was nothing requiring him to tweet on their behalf. Nevertheless, the ASA found that the tweet was a marketing communication which fell within the ASA's remit and for which PCH was responsible. Even though Mr Chegwin composed the tweet himself, it was PCH's responsibility to ensure that promotional activity conducted on its behalf was compliant with the CAP Code. In the absence of an identifier such as "#ad", the ASA considered that the tweet was not obviously identifiable as a PCH marketing communication. Therefore, the tweet was not compliant with the CAP Code.
Toni and Guy
In July 2012, Gemma Collins sent two tweets on behalf of Toni and Guy (the hairdressing salons), after Toni and Guy offered to waive the cost of her hair cut. The tweets read: "In @Toniandguylside having such a wonderful time defo got my hair back to good condition 10% off call today and quote #gemma x" and "10% off @Toniandguylside I have the most amazeballs hair colour and condition best salon ever call and say #gemma for discount xx". The ASA found that the tweets did not contain a clear identifier such as "#ad". Consequently, the ASA considered that the tweets were not obviously identifiable as marketing communications, upholding the complaint.
Mars Chocolate UK Limited
Mars Chocolate UK Limited were the subject of a complaint to the ASA in 2012. In this cases, the ASA did not uphold the complaint. The complaints both related to a series of texts posted from the official accounts of Rio Ferdinand and Katie Price, promoting Snickers with the advertising idea that the celebrities were not being themselves because they were hungry. The tweets from Rio Ferdinand read:
- "Really getting into the knitting!!! Helps me relax after high-pressure world of the Premiership",
- "Can't wait 2 get home from training and finish that cardigan", "Just popping out 2 get more wool!!!",
- "Cardy finished. Now 4 the matching mittens!!!"
- "You're not you when you're hungry @snickersUk#hungry#spon ...". The final tweet included a picture of Rio Ferdinand holding a Snickers bar.
The tweets from Katie Price read:
- "Great news about China's latest GDP figures!!",
- "Chinese leaders are now likely to loosen monetary policy to stimulate growth. Yay!!",
- "OMG!! Eurozone debt problems can only properly be solved by true fiscal union!!! #comeonguys",
- "Large scale quantitative easing in 2012 could distort liquidity of govt. bond market. #justsayin" and
- "You're not you when you're hungry @snickersUk #hungry #spon ...". The final tweet also included a picture of Katie Price holding a Snickers bar.
The complainants challenged whether the advertisements were obviously identifiable as marketing communications. The ASA found that they were. While the ASA disagreed with Mars that only the fifth tweets in both series were marketing communications (the whole series was found to form part of an orchestrated advertising campaign), it found that combination of the reference to Snickers and also the use of "#spon" was sufficient to make clear that the tweets were advertising and that consumers would understand them as such. The tweets were found not to break the code.