After the high-profile banning of a Twitter advertising campaign, how is it possible to adhere to regulations when advertising and promoting products on Twitter? Legal expert Kerry Gwyther explains
Nike recently became the first business in the UK to have a Twitter advertising campaign banned after the advertising watchdog decided that tweets posted by celebrity footballers on behalf of the brand were not obviously identifiable to consumers as part of a marketing campaign.
Online advertising is regulated by the rules contained within the Committee of Advertising Practice (CAP) code, which is enforced by the Advertising Standards Authority (ASA).
The key overarching rule under the CAP code is that all marketing should be legal, decent, honest and truthful. More specifically, marketing must be obviously identifiable to consumers.
When using celebrities to promote products and services on the social media channel Twitter, businesses must be clear to consumers that the celebrity has been paid to promote and endorse that brand. Failing to disclose paid-for celebrity endorsements may constitute a criminal offence under consumer protection laws.
The ASA has emphasised that the rules do not just require advertising to be identifiable but it must be obviously recognisable to consumers as illustrated in the recent Nike case.
Nike's "Make It Count" campaign involved tweets from the personal accounts of Wayne Rooney and Jack Wilshere. Despite the tweets stating Nike's website address and containing the hashtag #makeitcount, the ASA concluded that not all consumers would recognise the tweets as a marketing campaign by Nike and therefore the brand was in breach of the rules.
The CAP has subsequently said that Nike could have used the hashtags #ad or #spon within the body of the tweet to make it easily recognisable to consumers that the content is in fact an advertisement.
Operators in the leisure sector should ask themselves the following questions when considering advertising on Twitter:
â- Can the audience easily distinguish advertising from editorial?
â- Are advertisements presented in a space where audiences would expect to contain adverts?
If the answer to any of these questions is no, then steps need to be taken to ensure that advertising is obviously identifiable to your target audience. In the case of Twitter, the tweet should include the hashtag #ad or #spon.
Businesses that fail to comply with the CAP Code when using Twitter to promote products and services risk campaigns being pulled up by the ASA, resulting in significant wasted marketing costs as well as adverse publicity. Misleading marketing can also lead to a loss of consumer confidence in the brand.
In the case of serious breaches and persistent offenders, the ASA can refer matters to the Office of Fair Trading which may lead to civil or criminal proceedings for breaches of consumer protection laws. The penalties include potentially unlimited fines.
Kerry Gwyther is a partner and head of commercial regulatory at TLT Solicitors