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The ASA must sharpen its teeth on social media: If we don’t police ourselves properly, the government will


By James Whatley, strategy partner

October 24, 2013 | 10 min read

...and who wants that, asks James Whatley, lead social strategist at Ogilvy & Mather London.

In a UK on the brink of introducing internet censorship, we can no longer afford to believe that the government is afraid to step in and apply its own rules to a resource it doesn’t fully understand.

To that end, organisations that are already responsible for providing internet usage guidelines in the current climate need to take a long and hard look at how well they are performing – or else the government deem it fit to step in.

Background: The ASA and online marketing

Three years ago, the Advertising Standards Agency (ASA) announced that, as of March 2011, the Committee of Advertising Practice’s UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (The CAP Code) would apply in full to marketing communications online.

This new remit was set out to ensure the same ‘high standards’ as in other media and covers:
  • Advertisers’ own marketing communications on their own websites and;
  • Marketing communications in other non-paid-for space under their control, such as social networking sites like Facebook and Twitter.
At the time, ASA chairman Lord Chris Smith said:“This significant extension of the ASA’s remit has the protection of children and consumers at its heart. We have received over 4,500 complaints since 2008 about marketing communications on websites that we couldn’t deal with, but from March 1st [2011] anyone who has a concern about a marketing communication online will be able to turn to the ASA”Section 2 of the CAP Code states:
  • Marketing communications must be obviously identifiable as such.
  • Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context.
  • Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them “advertisement feature”.
Six months later, in response to this new remit, The IAB and ISBA put together the following guidelines:Brand owners and marketing practitioners should follow three steps when a payment has been made in order for someone to editorially promote a brand, product or service within social media:
  1. 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 (see example below).
  2. 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. 

  3. Ensure that the content of the ‘marketing communication’ adheres to the principles of the CAP Code.
Eg a Twitter user is paid by a brand owner or marketing practitioner specifically to use Twitter to promote a brand, product or service. The brand owner or marketing practitioner should ensure that the Twitter user discloses the payment by including ‘#ad’ within their tweet. As tweets are limited to 140 characters, the use of the ‘#ad’ hashtag allows maximum room for the message itself, but also makes clear to consumers that the message has been paid for.

Guidelines in practice: problems arise

June 2012, Nike becomes the first UK brand to have its Twitter campaign banned by the ASA. Why? These three quotes from the assessment sum it up: ”We noted the Code did not just require ads to be identifiable as marketing communications but that they must be obviously identifiable as such.””Not all Twitter users would be aware of the footballers’ and their teams’ sponsorship deal with Nike.”“The tweets were not obviously identifiable as Nike marketing communications and therefore concluded they breached the Code.”The offending tweet has since been deleted (some six months after it was published – a fact we’ll return to), however a screengrab can be seen below:
Brands, sports personalities and social media are not quite natural bedfellows, it would seem. Back in August 2011, I put forward a speculative argument for the exclusion/review of the rules around long-term sponsorship agreements: Case in point: Tiger Woods and NikeWhen we see Mr Woods teeing up at the PGA Tour do we question that the Nike cap he chooses to wear is there for any other reason than advertising? No, of course not. It’s an expectation; something that we, as the viewing public, have grown to accept within this particular industry. It’s a given that this happens. However, it’s also assumed that given his high profile nature this sponsorship must have happened. Why else would he be wearing the logo?And of course, there is no doubt that Nike put out a press release when this sponsorship was made – but how long ago was that? Shouldn’t he be adding the word ‘ad’ onto that hat? No, of course not. That’d be silly.But if he tweets something about Nike, will he have to append it with ‘#ad’?It doesn’t make sense.Yes of course I agree that we should ultimately make it explicit that a piece of content created in the name of advertising is in fact an ad, but why not have something on the website/homepage/bio that states this is the case? Better yet, exactly how are paid endorsements going to be handled moving forward? Social media are fundamentally different, but a sponsorship deal is a sponsorship deal. Be it product placement in movies (and games), Nike on Tiger Woods…. or bloggers being sponsored by a brand to write about products, it’s the same rules – right?So HOW can we expect to retrofit one solution across them all? We can’t.And yet, in April 2013, it happened again:
A complaint was made to the ASA about the above tweet challenging whether it was obviously identifiable as a piece of marketing communication. The complaint was not upheld. The ASA noted the tweet included the statement:"The pitches change. The killer instinct doesn't. Own the turf, anywhere" followed directly by the @NikeFootball Twitter address, the hashtag "myground" and a link to a picture. We considered the reference to Nike Football was prominent and clearly linked the tweet with the Nike brand. Whilst we considered that not all Twitter users would be aware of Wayne Rooney's sponsorship deal with Nike or the particular Nike campaign the tweet promoted, we considered that in the particular context of a tweet by Wayne Rooney the wording of the initial statement was such that in combination with "@NikeFootball" and "#myground", the overall effect was that the tweet was obviously identifiable as a Nike marketing communication.”As notable social media agency, We Are Social, commented: “Though it appears to have been sponsored by Nike, the ASA ruled that it was clear enough that this was the case. Though at risk of being sanctioned because it did not say #ad or #client anywhere in the tweet, it was deemed acceptable, in that the mention of @NikeFootball was as clear an indicator as either of those.”

Why this isn't good enough

In the case of Nike and Mr Rooney, it is clear that the missing “obligatory” hashtag #ad is a running theme. But why is the ASA deeming the inclusion of the brand name and campaign sufficient instead such a big issue?
  • In social media, @names and @replies are used to talk to and highlight other users in conversation and messaging. The inclusion of ‘@NikeFootball’ could easily be read as a conversational piece of content and not an ad at all.
  • Is this advertorial? Is it marketing communications? Is it both? Either way, where does it clearly state that this is the case and where is the obviously identifiable marker (per the CAP Code requirements)?
  • The CAP code states that advertising must be responsible, must not mislead, or offend and contains specific rules that cover advertising to children and ads for specific sectors like alcohol, gambling, motoring, health and financial products. If a teenager spotted said tweet from Mr Rooney, and didn’t know that Nike sponsors him, what then? What if he were to believe that Mr Rooney was simply in conversation with Nike, and then went onto engage with Nike, thanks to this tweet?
With the government’s renewed interest in internet censorship, the marketing and advertising industry would do well to take notice of what’s going on around it. We only need to look back at the Leveson Inquiry as well the current furore about the Press Complaints Commission’s lack of interest in signing up to new restrictions to see that Westminster will not simply sit back and watch should we not live up to the standards that we enforce upon ourselves. If we don’t police ourselves properly, the government will – and they will be far, far more draconian in their approach than we could ever dream.

Conclusions: what does this mean for the ASA?

  • It is clear that today’s Code of Advertising Practice does not take into account the grey area that exists between the relationship between brands and its’ sponsored ambassadors.
  • There is a clear disparity between The CAP Code, the recommended guidelines, and the execution of branded paid-for/sponsored placement within social media.
  • This is not and will not be the first or last time such a case is made. This is fundamentally a grey area of the code and therefore must be reviewed.
It’s simple: if the ASA doesn’t sharpen its teeth, the government will have them removed, and our entire industry will suffer for it. One final point: the Wayne Rooney complaint that was upheld? It was upheld six months after publishing. If the half-life of an average tweet is 10 minutes at best, what is the point of deleting that ‘ad’ six months after it was no longer going to be seen? If the ASA can’t get better at policing its industry, it should at least get faster.James Whatley is lead social strategist at Ogilvy & Mather Advertising, London


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