Legal reaction to ASA clearing Mars of using Katie Price and Rio Ferdinand to tweet about Snickers
Fall out from the Advertising Standard’s Authority’s decision to clear Mars of any complaints through the use of celebrity tweets to promote Snickers has led to a great deal of discussion. Some legal experts offer their own take on the decision.
Tim Ryan from legal firm Clarke Willmot
“The recent Snickers Twitter campaign ruling is interesting as it hangs on the ASA's opinion that hashtags on certain tweets (particularly in that case the hashtag #spon) were sufficient to show that the tweets contained advertising. In turn this apparently ensured that the tweets were not confusing to followers of the Twitter accounts. Although not addressed in that case, it does raise myriad questions such as what the effect would be of followers re-tweeting advertising tweets and omitting the hashtags.
“One of the fundamental and directly relevant pieces of the CAP Code is that ‘Marketing communications must not materially mislead or be likely to do so.’ In summary, the authorities have apparently taken a view that the hashtags used in the relevant tweets caused there not to be confusion.
“More precedent and guidance will be needed before there's much more certainty on the topic. However, we should recognise that certainty in social media is not common. That’s just the nature of the ever changing beast. Although, as we have seen, regulatory bodies are getting involved in cases like this there already seems to be a lot of ‘self-regulation’ in the social media space without intervention of the authorities. For example, Twitter followers tend to ‘vote with their feet’ and cease to follow people who are seen to be commercialising their tweets too much and the reputation of celebrities or others involved in cases such as this arguably could be affected negatively in the eyes of their followers and wider public.”
A spokesperson for law firm Lewis Silkin LLP
This decision is consistent with the way the ASA treats these “teaser” campaigns in other media. It would have been a great shame if the purists who would like to see Twitter as a commercial free zone had managed to deny advertisers and consumers the ability to enjoy this type of campaign using Twitter. Not only is it a victory for common sense, but also for the principle that the average reasonable consumer is reasonably well informed and circumspect and not a naive innocent who needs to be protected from all forms of marketing. Most users of Twitter, even those who had never seen a television campaign, might have been able to guess that something was up when Rio started tweeting about knitting and Katie about quantitative easing.
Timothy Pinto, media and intellectual property lawyer at International law firm Taylor Wessing
"This is an important decision as it shows that the ASA has adapted the traditional concept of 'marketing communications' to relatively new digital advertising media, such as Twitter. By not upholding the complaints, the ASA has taken a common sense, rather than a strict, approach to this Twitter celebrity marketing campaign. '
'The adjudication gives useful guidance to advertisers (and celebrities) on what they need to include in their 140 characters to make it clear that a Tweet is a marketing communication, in this case it was the reference to #spon, along with @snickersUK and a photo of the celebrity holding the Snickers bar."