Hashtag To Hell - ASA Upholds complaint against (and "bans") Nike Twitter Campaign

UK law around Celebrity Tweeting has not (until recently) been as clear as in the US, where the Federal Trade Commission developed guidelines stating that a celebrity endorsement Tweet must contain the words "ad" or "spon" to show that it's been paid for. "Spon" has seen some takeup in the UK, less because celebrity tweeps wanted to make it clear that their opinions were paid for but more because on 11 March last year, the Adertising Standards Agency's remit changed dramatically from only being able to deal with complaints relating to - and adjudicate on - advertisements and marketing communications in traditional media and paid- for (i.e. Banner and Pop-Up) online campaigns to cover a whole new range of content.

In their words, their new remit extended to: "Advertisers’ own marketing messages on their own websites, Marketing communications in other non-paid-for space under the advertiser’s control, such as social networking sites like Facebook and Twitter and Marketing communications on all UK websites, regardless of sector, type of businesses or size of organisation."

So, what you say about a brand or business online would be dealt with in exactly the same way as it would offline. Some responded with a resounding "so what", with many falling back on the usual stance that the ASA has few real powers to take action against what they refer to as "misleading advertising", falling foul of their stated aims of keeping adviertising in the UK "Legal, Decent, Honest and Truthful". The most cynical may have said something along the lines of "what are they going to do, adjudicate"?

Adjudication is actually a pretty effective deterrent, with the vast majority of advertisers who have complaints upheld against them choosing to comply. If they don't then the ASA has other sanctions it can bring to bear, such as "Ad Alerts" which advise its members to withhold services such as access to advertising space, withdrawal of trading privileges (such as the Royal Mail bulk mail discount, which can make a direct campaign way more expensive), demanding that persistent or serious offenders have their marketing material vetted before publication or specific digital sanctions such as removal of paid-for search ads and the ASA placing their own banner ads online to highlight non-compliance. All in all, the digital sanctions can bite much harder.

And then there's the ultimate sanction - referral to the Office of Fair Trading for legal action, including an injunction. As well as being a breach of the ASA Code, misleading advertising is a criminal offence under the Business Protection From Misleading Marketing Regulations 2008 or Consumer Protection From Unfair Trading Regulations 2008 ("CPRs"). The CPRs are the most worrying - Regulation 3 refers to "unfair commercial practices", which it describes as any which "contravene the requirements of professional diligence; and materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product."

One practice that's explicitly listed as being unfair is "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.” The statutory maximum fine is £5,000, but in more serious cases of a breach of the regulations the maximum sentence is two years’ imprisonment. However, prosecutions can only usually be brought within three years of the date of the offence.

So, how does all this square with an innocent celebrity Twitter campaign? Advertising is tightly controlled by the ASA and the CPRs, with the main objective of both being to prevent misleading campaigns that "distort the economic behaviour of consumers". Whilst ASA itself isn't able to fine or award damages, it is backed up by the OFT, who can take action against campaigns either by applying for an injunction to have them removed or by mounting a prosecution under the CPRs. Last year, the OFT took action against the agency Handpicked Media, who agreed not to "engage in promotional activity unless bloggers within its network prominently disclose that the promotion has been paid for".

Bloggers and other Users of Social Networks are increasingly Tweeting about brands and businesses to make their opinions known. If it's favourable then it's potentially worth a fortune as genuine and very quantifiable "word of mouth", which tends to travel very far and very fast. That is, of course, if it is genuine. Sony was one of the first to experience a backlash from a viral campaign at the end of 2006, when the ‘All I Want For Christmas Is A PSP’ mashup strand was exposed as the product of a ‘consumer activation’ firm. Gamers were not impressed, and took to YouTube to post their own negative video messages in response. As yet, there have been no actual prosecutions under the CPRs and it's important to note that the Handpicked Media case didn't lead to a conviction - so far there haven't been any convictions against advertisers under the CPRs, but the OFT is not afraid to step in where it needs to.

Fake blogs almost certainly don't generate a real return on investment, but a celebrity Tweet can be priceless. Last year, Range Rover enlisted 40 celebrities (including Daisy Lowe and Ben Shepherd) to drive a new model and then Tweet about the experience. Fashion designer Henry Holland seemed pretty unequivocal: "CAN'T WAIT FOR MY NEW RANGE ROVER..!!!". Lily Allen and Peter Andre have also jumped on the bandwagon and Estee Lauder’s products have regularly tweeted about by Liz Hurley, who has been the "face" of the company since the mid-90s, a fact strangely missing from her profile.

The first major case that forced the ASA to deal with "tweeting for hire" came to light in January this year, when the ASA confirmed that it had launched an investigation into tweets by celebrities such as Katie Price and Rio Ferdinand promoting Snickers as part of its ‘you’re not you when you’re hungry’ campaign. Ferdinand had sent out tweets about knitting and Katie Price discussed Eurozone economic policy, with many assuming that both accounts, as well as the feeds of other celebrities such as Ian Botham, had been hacked. How wrong we were - later in the day, the celebrities involved tweeted ‘You’re not you when you’re hungry@snickersUk#hungry#spon’ with a picture on them holding a Snickers. Since they got paid for sending the tweets, the ASA investigated but ultimately didn't uphold complaints against Mars as the eventual "reveal tweets", which featured a photo of the celebrity in question holding a Snickers Bar were clearly identifiable as marketing communications, including the #spon hashtag.

So, those who thought that the ASA would make an example of Mars (and by implication, Katie Price, Rio Ferdinand and others) were wrong and celebrity Tweets were here to stay. They are, but we've now seen the first case in which the ASA has taken action to "ban" a campaign which features them. In the first case of its kind, the Advertising Standards Authority has "banned" a Twitter Campaign by Nike UK which made use of the personal Twitter accounts of footballers Wayne Rooney and Jack Wilshere on the grounds that their tweets were not obviously identifiable as "marketing communications".

These were the tweets in question:

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".

Nike was running the "Make it Count" campaign as part of a wider marketing push, and pulled in Rooney and Wilshere as part of their sponsorship deals with the Company. A complaint was made that the Tweets were not clearly identified as advertising and the ASA Investigation began. Nike claimed that both players were well-known for being sponsored by the retailer and argued that Twitter "followers" would not be misled about its relationship with the players, who they said were free as part of the campaign to independently reply or retweet consumer tweets "at their own discretion" about their "goals for 2012" and that the web address in the tweet was clearly branded as Nike, and carried the company's ad strapline, making it clear which tweets by the players were personal and which were ads.

The ASA disagreed, finding that the reference to Nike was not prominent and could be missed, making the Tweets not obviously identifiable as advertising and in breach of the ASA's CAP Code. Not all Twitter users would know about the Players' Sponsorship deals with Nike and in the absence of either a #spon or #ad hashtag, the Tweets "must no longer appear".

Unless a celebrity brand advocate makes it clear that they're being sponsored to express an opinion of a product or service, there's every chance that they may well be seen to be misleading the public by covertly endorsing it. Although the vast majority of Twitter users will be perfectly able to tell when they're being sold to, protecting vulnerable consumers is something the ASA and OFT take very seriously. Marketers may now have to factor in the cost of dealing with an adjudication (and the publicity fallout) or even being drawn into defending a prosecution over a riskier or more "subliminal" campaign or stunt into their ROI, and you can bet that the average Celebrity Tweeter won't be willing to fund it for them. The industry will be keeping an future cases, and this one could set a very important precedent. For now, adding #SPON or #AD to a celebrity tweet is very advisable, even it uses up to 5 characters from your 140...