September 17, 2012

This article was written by Antonia Anness and was first published in new media age on 13 September 2012

User-generated content (UGC) and use of social media, such as Twitter, can be a form of good or bad publicity but regardless of effect, keeping up with the tempo of trends in the digital biosphere inevitably forces businesses to focus on their brand’s image. So what are the regulatory pitfalls and caveats surrounding the use of digital promotion?

From 1 March 2011, the UK Code on Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) was extended to regulate advertisements and other marketing communications (collectively, ads) on businesses’ own websites and in other non-paid-for space online (including social media, such as Facebook and Twitter) under their control.

Previously, the ASA’s remit applied only to emails and ads in paid-for space (as detailed in the publication ‘Extending the Digital Remit of the CAP Code’).

The extension included making additional ‘name and shame’ style sanctions available to the ASA, including:

• Providing details of an advertiser and its non-compliant ad on a designated ASA webpage
• Placing ads on internet search engines which highlight an advertiser’s continued non-compliance
• Removing paid-for ads that link directly to the webpage which hosts the non-compliant ad

Within the first six months of the extension, 36% of the ASA’s cases fell under its new remit (see ‘Public responds to online remit extension’).

The ASA considers complaints on a case by case basis, and conformity with the CAP Code is assessed according to the ad’s probable impact when taken as a whole and in context, so businesses need to consider both the content and the context of their ads.

The ASA first determines whether any given item of content falls under the extended digital remit in the first place, i.e. was the content intended to sell something? Has it appeared in the same or very similar form as an ad in paid-for third party space, or does it include, or make easily accessible, an ‘invitation to purchase’ (as defined by the Consumer Protection from Unfair Trading Regulations 2008: “a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase”)?

Businesses must be careful not to handle UGC on webpages they control in such a way as to make the UGC an ad…or else be transparent. The ASA’s primary consideration is whether the website owner has adopted and incorporated UGC (whether provided on a solicited or unsolicited basis) in its ads. If it has, the context has been established and the ASA may well consider the content to constitute an ad.

For example, placing a consumer’s positive feedback in a prominent position on a webpage rather than leaving it on the message board as one message amongst many could be considered advertising.

Recent ASA adjudications have encouraged the development of the use of identifiers such as #ad or #spon in a tweet to ensure that all advertisements on Twitter are “obviously identifiable as marketing communications” (CAP Code Rule 2.1). Tweets are a quick and effective way of reaching out to the masses, particularly those that are en trende. Celebrities’ large followings on Twitter are a valuable resource for brands (whether it be brands that sponsor the celebrities or emerging brands that offer free products in return for tweets about the products). Awareness of the ASA’s guidance itself has been driven by the high profile celebrities whose tweets have been the subject of ASA adjudications.

The most publicised adjudication relating to Twitter is Nike’s #makeitcount campaign (June 2012) in which Wayne Rooney and Jack Wilshere included the #makeitcount hashtag and a link to a film in which they featured on the Nike website.

Although Nike submitted that the tweets would have stood out from the footballers’ usual tweets, the ASA took the view that the tweets might not have been obviously identifiable as ads to users scrolling through a number of tweets, and not all users would be aware of the campaign or the footballers’ sponsorship deals with Nike.

The ASA’s intention was to highlight that an identifier was required for the tweets in order to comply with CAP Code Rule 2.1.

The ASA’s attitude to transparency was confirmed in its adjudication against Toni & Guy (Lakeside) (July 2012) in relation to two successful tweets by TOWIE’s Gemma Collins, in which Ms Collins praised the service she had received at the salon, offered a 10% discount to those who quoted her name (#Gemma) in-store and included a link to the store’s Twitter page. Amongst other comments relating to the clarity of the offer being described in the tweets, the ASA emphasised the need for a #ad identifier.

The ASA clearly understands the topography of Twitter and the various ways in which the platform is used for advertising and marketing, as demonstrated in its adjudication of the Snickers ‘you’re not yourself when you’re hungry’ campaign fronted by Katie Price and Rio Ferdinand (January 2012). The ASA held that the posting of five successive tweets – comprising four “teasers” in which each celebrity commented on issues with which they would not usually be associated and a final “reveal” tweet (which included #spon, the strapline and a photograph of the celebrity with a Snickers bar) – were obviously identifiable as ads and did not breach the CAP Code as they were in relatively quick succession and the “teaser” tweets were relevant to the fifth tweet.

Among the pressure to be creative in a world that’s fast and busy, it may seem that losing three characters out of a precious 140 to include #ad is too much to spare, or that a large emboldened customer testimonial on a webpage’s central banner is the only way to capture a user’s attention.

How interesting to see that in the most up-to-the minute and instantaneous social media, the old time-honoured television regulatory principle demanding clear separation of ‘editorial’ and ‘commercial’ content is still the most useful concept.