Who: The Advertising Standards Authority (ASA), KSI / Mr Olatunji (KSI) and JD Sports Fashion plc (JD)
Where: United Kingdom
When: 17 May 2023
Law stated as at: 9 June 2023
What happened:
On 23 November 2022, KSI posted a video on his social media account, which included himself and others playing games at a bowling alley and arcade. The video included close-up shots of trainers and people wearing popular sports brands. At the end of the advert, JD’s logo was shown under text saying “KING OF THE GAME”. The post referred to visiting a third party site to view further content and tagged the brands shown.
The ASA held that the advert breached the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) rules 2.1 and 2.3, as it was not sufficiently clear it was a marketing communication. In making this ruling, the ASA considered the following issues:
- Putting ‘#ad’ after receiving a notification of complaint by the ASA is not, in itself, sufficient
After receiving the notification of a complaint from the ASA, KSI edited the caption to include “#ad”. In this instance, the ASA welcomed the assurance, but said the problem remained that when the ad was originally seen by users, the commercial relationship was not made clear. Therefore, this activity did not prevent the ad breaching the CAP Code.
- The contractual relationship between the parties, meant that they were jointly responsible for any breaches of the CAP Code
JD confirmed that KSI was contracted by a third-party agency to post ads on the company’s behalf. As a result, the ASA considered this post was a marketing communication, for which both parties (KSI and JD) were jointly responsible.
- Marketing communications must be obviously identifiable
Overall, through a series of references to the “JD Arcade“,”@jdsportsofficial” and the full version of the video on the third party website, the caption signalled the parties had a commercial relationship. However, as all of these references only focused on JD (not their commercial relationship), the ASA considered that the marketing nature of the post was not immediately clear to consumers.
- The popularity of the TV version of the ad did not mean consumers would know KSI’s post was an ad
The ASA did not accept that the general popularity and social media discussions about the TV version of the ad, meant users would have been aware that KSI’s post was an ad. Alongside this, JD had argued that the video’s celebrity cameos and general extravagance made it clear the post was an ad. In response, the ASA said that even if consumers did realise at this point, they would already be watching the ad.
Why this matters:
This ruling is one of many by the ASA that focuses on influencer marketing and reiterates the importance of compliance. Overall, for companies it is not enough to simply hope that the influencer is aware of their obligations, as both parties are equally responsible if consumers are misled. Therefore, companies and influencers have been warned – ensure #ad is added to paid for social media posts, before it is too late!
