Social Media and Celebrity Endorsement

Social Media Marketing: Legal & Commercial Best Practice

Agenda

• What does the law say?

• What does the law mean?

• What do the regulatory codes say?

• What do the regulators want to see?

• What guidance is there to interpret all this?

• A look at high profile examples

• A fuss-free list of what to do

• A test!

What does the law say?

Consumer Protection from Unfair Trading Regulations 2008

Applies to all marketing communications

Prohibits:

► Using editorial content in the media to promote a product where a trader

has paid for the promotion without making it clear in the content or by

images or sounds clearly identifiable by the consumer (advertorial)

►Falsely claiming or creating the impression that the trader is not acting

for purposes relating to his trade, business, craft or profession, or falsely

representing oneself as a consumer

What does the law mean?

1. If a brand pays for a reference in any editorial content then it must

ensure that there is reference within the content to the fact of payment

● editorial content is not defined in the legislation and at its broadest means anything

that is not advertising and which provides comment, opinion or news

● it doesn’t matter whether or not the brand has written the editorial content

● payment need not be in money but can be vouchers, discounts, free

products/services

2. A brand must not set up a fake blog to promote its products/services

3. A brand must not pose as a consumer to post reviews of its products or

services

What do the regulators say?

CAP Code (enforced by the ASA)

1. Marketing communications must be obviously identifiable as such

2.3 Marketing communications must not falsely claim or imply that the

marketer is acting as a consumer or for purposes outside its trade,

business, craft or profession; marketing communications must make clear

their commercial intent, if that is not obvious from the context

2.4 Marketers and publishers must make clear that advertorials are

marketing communications; for example, by heading them “advertisement

feature”

What do the regulators mean?

What is a marketing communication for the purpose of the CAP Code?

print, posters, cinema, direct marketing, emails, texts, online banner or pop-up

advertisements and online video advertisements, paid-for search listings,

preferential listings on price comparison sites, virals, in-game advertisements,

commercial classified ads, advergames, bluetooth ads, advertisements distributed

through web widgets, online sales promotions and prize promotions, advertorials,

own websites, other non-paid-for space online under a brand’s control

[NB may control a tweet if not a whole Twitter account and a blog entry if not the

whole blog]

What does it mean altogether?

In very simple terms in relation to brand references in tweets and blogs:

The Law says: if you ‘pay’ for the reference -

make it clear

The Regulators say: if you control the reference

editorially - make it clear

Both say: don’t pose as a consumer

What does the guidance say?

How do you make a tweet obviously identifiable as a marketing

communication?

The ASA says it will assess each tweet on its own merits, but is likely to

take into account factors such as:

• the time-lapse between any teaser tweets and any advertising reveal

• the understanding of the audience and

• the context in which the tweets appear

before they decide whether or not the tweets are sufficiently recognisable

as an ad or whether the tweets need to do more to convey their advertising

intent

What does the guidance say?

IAB, ISBA, CAP and OFT together produced guidelines for compliance with the

law and regulatory regime. The guidance states that where payment is made for

the making of a marketing communication:

►whether payment is made in cash or free products this must be disclosed

►the marketer must comply with platform providers T&Cs

►the marketing communication must comply with CAP code as to content

How do you disclose the fact of payment?

In a tweet By including #ad or #spon

In a blog In words within the relevant post

By adding the nofollow attribute to any hyperlink

Give me some examples….. Snickers: the campaign

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

▲

one

hour ▼

Give me some examples….. Snickers: the ASA Ruling March 2012

ASA said: ●Each tweet formed part of an orchestrated ad campaign

●The first 4 tweets were teasers, made no reference to Snickers & were posted in quick

succession

●The fifth tweet showed the celebrity, the product, the campaign strapline and #spon

which in combination made it clear the tweets were all marketing communications

Give me some examples….. June 2012

ASA said:

●Nike reference not prominent and could be missed

●Not all twitter users would be aware of Nike’s #makeitcount campaign

● Not all twitter users would be aware of Nike’s sponsorship of the team

●Did not include #ad

Is this obviously identifiable as a

marketing communication?

No

Give me some examples….. Toni and Guy July 2012

In@Toniandguylside having such a wonderful time defo got my hair

back to good condition 10% off call today and quote #gemma x

10% off @Toniandguylside I have the most amazeballs hair colour

and condition best salon ever call and say #gemma for discount xx

ASA said:

In the absence of an identifier such as #ad they were not obviously identifiable

as marketing communications

What should I do?

Publisher Type of Communication Action

Paid Celebrity Any tweet mentioning the brand Include #ad

Re-tweeting any other person’s

comment about the brand

Include #ad

Re-tweeting brand’s own tweets Include #ad

Reference to brand in own blog

● Must identify status as

paid brand ambassador

● Any link to have nofollow

attribution

Comment posted on any forum

Must identify status as

paid brand ambassador

NB: where brand has editorial control over what celebrity says the content must

also comply with the entirety of the CAP code

What should I do?

Publisher Type of Communication Action

Blogger receiving free

goods or payment

Any blog entry mentioning the

brand (edited or not)

Blogger must state that free

goods received within blog

post

Any hypertext link to a brand

website

Include nofollow attribute

Twitterer receiving free

goods or payment

Any tweet mentioning the

brand

Include #ad

Any re-tweet mentioning the

brand

Include #ad

Blogger making

unsolicited comments

Any

No action required

Test

Test

Thank you