Yet again, Premier League players have featured in an ASA investigation into whether there was enough transparency as to the marketing purpose of a Tweet. This time Wayne Rooney and Jack Wilshere Tweeted and Nike was the brand. Tom Harding and Ciaran Price report on the verdict and resulting new guidance.
Topic: Social media
Who: Advertising Standards Authority ("ASA"), Wayne Rooney, Jack Wilshere and Nike
Where: London
When: June 2012
Law stated as at: 20 June 2012
What happened:
The ASA recently ruled on a complaint that Tweets by footballers Jack Wilshere (Arsenal) and Wayne Rooney (Man United) advertising Nike were not sufficiently identifiable as marketing communications.
The Tweets in question were made in January 2012, when Wayne and Jack Tweeted on their official Twitter accounts as follows:
Wayne Rooney: "My resolution – to start the year as a champion, and finish it as a champion. #makeitcount.gonike.me/Makeitcount".
Jack Wilshere: "In 2012, I will come back for my club – and be ready for my country. #makeitcount.gonike.me/Makeitcount".
A complaint was made to the ASA however that the Tweets breached the Code as they were not obviously identifiable as marketing communications (2.1). Nike responded that, as Rooney and Wilshere were communicating with their Twitter 'followers', the latter would have been well aware that both footballers were well known for being sponsored by Nike, as were Arsenal and Manchester United. Nike therefore considered that their Twitter followers would not have been misled about the players' relationship with Nike.
Nike also argued that when the Tweets were viewed next to the players' personal Tweets, as followers would do in a Twitter feed, it was evident which were advertising communications and which were not. In Nike's view, the presence of the Nike URL within the body of the Tweets and the presence of the campaign strapline #makeitcount made it sufficiently clear that the tweets were adverts for Nike.
Just Do It (or in fact Don't Do It Again!)
However, the ASA upheld the complaint and banned Nike from allowing those adverts or similar from appearing on Twitter again. The ASA considered that the average Twitter user would 'follow' several individuals and may receive numerous Tweets over the course of a day, which they may scroll through quickly. The Code does not just require that adverts be identifiable as such, but that they should be obviously identifiable.
Nike's 'Make it Count' advertising campaign was also launched at around the same time that the Tweets appeared.
Accordingly, not everyone would have been aware of the campaign and so the inclusion of the reference "#makeitcount" would not have obviously meant it was an advertisement. In addition, not all Twitter users would be aware of the footballers' sponsorship by Nike. The ASA therefore considered that there was nothing obvious in the content of the Tweets to indicate that they were adverts on behalf of Nike and upheld the complaint.
New guidance:
In light of the Nike decision, CAP published further guidance on this area. In discussing what Nike could have done not to fall foul of the Cap Code, CAP in the first instance highlighted the Internet Advertising Bureau/Incorporated Society of British Advertisers guidance that recommends that a hashtag such as "#ad" or "#spon" can be used to make it obvious that the Tweets are marketing communications.
The guidance also discusses how some providers of television and online content have creatively used symbols, such as a yellow circle with an "A" inside it for example, to identify adverts on their pages. In order to comply with the requirements of the CAP Code however CAP highlights that these providers would still have to somehow make it clear to their customers what such a symbol meant Once customers were familiar with the idea that the symbol denoted an advert however, such a device would a simple and relatively unobtrusive way of meeting CAP requirements.
As a summary guide as to how best to achieve compliance, CAP suggests that marketers and advertisers have three questions to ask when preparing advertising communications, to which the answer should be 'yes' to avoid falling foul of the Code:
- will the audience quickly recognise the content as an advert because of the context?
- can the audience easily distinguish advertising from other content in the medium?
- are advertisements presented in a separate space that audiences expect to contain advertising?
These are quite basic in their approach, but a useful checklist nonetheless.
Why this matters:
As readers of Marketinglaw will be aware, enforcement action in respect of social media advertising seems to be getting more commonplace as the medium develops. Going forward, advertisers and marketers will therefore either have to follow the suggestion to use 'signposts' such as "#ad" in their marketing Tweets, or become more creative and dynamic in the way that they ensure that marketing communications are obviously identifiable. (See for example the Marketinglaw article on the ASA decision in the Rio Ferdinand and the Snickers Twitter campaign).
