Developed in consultation with the Office of Fair Trading and the Committee of Advertising Practice, the ASA’s sister body which writes the “CAP” advertising codes, these Guidelines’ objective is to provide clear, practical steps on acceptable transparency, thus avoiding law and code breaches. Tom Harding reports.
Topic: Social media
Who: The Internet Advertising Bureau UK and the Incorporated Society of British Advertisers
When: November 2011
Law stated as at: 1 December 2011
The Internet Advertising Bureau UK ("IAB") and the Incorporated Society of British Advertisers ("ISBA") have recently released guidelines as to how brand owners and marking practitioners should seek to comply with the Consumer Protection from Unfair Trading Regulations 2008 ("CPRs") when paying for editorial content in social media (for example in blogs).
The aim of the guidelines is to provide practical and easy-to-implement ways to help compliance in a fast changing environment and thereby avoid "unfair commercial practices", the principal type of wrongful behaviour which the CPRs prohibit.
Three CPR provisions potentially relevant
By way of backdrop, the key provisions of the CPRs which are likely to be relevant in this context are firstly Regulation 3(4)(b) of the CPRs, which provides that 'misleading omissions' constitute unfair commercial practices and are therefore in breach of the CPRs and carry penalties. Failing to disclose that editorial content had been paid for (or is otherwise remunerated) might well depending on the circumstances constitute a ‘misleading omission’.
The second provision of the CPRs which could be relevant here is Paragraph 11 of Schedule 1. This provides that an unfair commercial practice will be committed where a trader uses 'editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)').
The third CPR provision that could come into play is Paragraph 22 of Schedule 1. This renders an unfair commercial practice "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."
Handpicked Media case
The OFT brought a case against Handpicked Media ("HM") in 2010 under the CPRs on exactly this point, which sent out a loud and clear message that its enforcement action in this area had teeth. HM operates a commercial blogging network. As part of its services to clients, HM engaged bloggers to provide editorial coverage of various topics including fashion, beauty and music. The coverage inevitably included favourable references to HM’s clients or their products, and was published on various sites and blogs including via Twitter.
The OFT was concerned that the individuals engaged by HM were publishing online content which promoted the activities of HM’s clients without making it sufficiently clear to consumers that the promotions had been paid for. It subsequently found that HM was in breach of the CPRs in doing so, and required HM to give formal undertakings that it would discontinue the practice.
ISBA and the IAB have therefore published the guidelines to help brand owners and marketing practitioners avoid falling foul of the CPRs, and to "uphold the integrity of a growing social media environment". As Robin Grant of We Are Social and the IAB said "Despite legislation coming into force over three years ago, there are still brands unknowingly putting themselves at risk… [the guidelines should] held brands comply". In producing them ISBA and the IAB also held discussions with the OFT and CAP, so they are also looking to reflect some industry consensus.
Three golden rules
The guidelines are as follows:
• ensure that the author or publisher of the message discloses that payment has been made. This will ensure that it is clear to consumers that it is a marketing communication;
• ensure that authors adhere to the appropriate terms and conditions of the social media platform or website that they are using in relation to promoting a product or service. This includes search engines likely to index the content; and
• ensure that the content of the 'marketing communication' adheres to the principles of the CAP code.
Although not greatly detailed therefore, it is in many ways the practical examples that accompany them where a lot of the value lies. Scenarios relevant to today's campaigns, including those in relation to Facebook, Twitter, forums and blogs, are all included.
The guidance also specifically recommends giving '#ad' disclosures when using Twitter, something that has long been used in the US, but which the IAB also suggests could be used in the UK so that there is consistency and recognition for consumers.
Why this matters:
In a relatively new sphere of marketing where enforcement action has already taken place, practical guidance is of course good news for brand owners and marketers. Some comfort can also be taken that ISBA and the IAB have also sought to make this 'cross-industry' guidance with support from advertisers, policy makers and enforcers alike. Whilst of course additional scenarios to those set out in the guidance will no doubt arise, the three core steps are at least a sound starting point when looking to comply with the CPRs in this sphere.
Full details of the guidance can be found here.