Snickers, The ASA and a kick in the Nuts?

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 is now investigating whether the initial 'teaser' tweets should have indicated that they were part of a stunt or campaign, and if the ‘#spon’ in the last message made it clear enough that this was the case.

It didn't take long for Twitter to become a very effective advertising platform, or for Celebrities to embrace the commercial possibilities of lending their name to products in less than 140 characters. Given that Twitter in particular creates a very direct connection between the "Twitterati" and their fans, it can, when used properly, be a very powerful advertising platform. Advertising is tightly controlled in the UK by the ASA, whose main aim under the CAP code is to prevent misleading campaigns that "distort the economic behaviour of consumers". The ASA itself isn't able to fine or award damages but 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 Consumer Protection From Unfair Trading Regulations 2008. 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".

The idea of "Flogs" – fake Blogs or Tweets written from the Consumer's point of view but either created or paid for by marketers has been around for a few years now. Research shows that Bloggers and Users of Social Networks are increasingly Tweeting about brands and businesses to make their opinions known. If the opinion'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 at the end of 2006, when the ‘All I Want For Christmas Is A PSP’ viral campaign 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. "Flogging" and by implication sending Tweets designed to "mislead" the public, is criminal offence under the Consumer Protection Regulations. 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.

As yet, there have been no actual prosecutions under the Regulations and it's important to note that the Handpicked Media case didn't lead to a conviction - as yet there haven't been any convictions against advertisers under the 2008 regulations, but the OFT is not afraid to step in where it needs to.

The industry may be learning that fake blogs 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. That fact is strangely missing from her profile.

The ASA and OFT's next step will be very interesting to watch. Although the CAP Code, which now applies to online advertising, website content and Social Media comments adopted as "marketing messages" as well as print and press, states that advertising must be truthful, not misleading and capable of being substantiated, the penalties for non-compliance are nowhere near as severe as those under the Consumer Protection from Unfair Trading Regulations, which include a fine or even imprisonment. Defences are available, but work best when there's a careful compliance process already in place and when campaigns are put together with the CAP code and its outer limits in mind.

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 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 eye on this case, and it could set a very important precedent. For now, adding #SPON to a celebrity tweet is very advisable, even it uses up 5 characters...