Using social media in ad campaigns – same old rules, just new ways of breaking them

Pinbooster is one of many new services which seek to leverage social media for advertising. The Pinbooster service pays users to re-pin ad messages from brands on Pinterest. Similar services have existed for a while, e.g. pay-per-tweet services like Izea’s Sponsored Tweets where brands can pay users to advertise. Interestingly, Pinbooster automatically appends the “#ad” hashtag to the ad text which the users “re-pin”.

In the UK, the automatic inclusion of the “#ad” hashtag has developed as a response to investigations such as the OFT’s into Handpicked Media back in 2010. In the Handpicked Media investigation, the OFT looked at Handpicked Media’s engagement of bloggers who published online content promoting Handpicked Media’s clients. The OFT found that Handpicked Media had breached the Consumer Protection from Unfair Trading Regulations 2008 (the “CPRs”) because the activity used editorial content to promote a product without making it clear that the promotion had been paid for. Following the investigation, Handpicked Media signed undertakings which require any such future promotional activity to clearly identify that the promotion has been paid for.

The CAP Code contains equivalent provisions to the CPRs regarding the recognition of advertising (here) and there have been a few recent ASA investigations into ad campaigns which used social media in ways which potentially breached these rules.

One adjudication from June, involved two tweets for Nike posted by the footballers Jack Wilshere and Wayne Rooney.

Wayne Rooney’s tweet stated:

My resolution – to start the year as a champion, and finish it as a champion…#makeitcount

Jack Wilshere’s stated:

In 2012, I will come back for my club – and be ready for my country.

The ASA held that there was nothing sufficiently obvious in the above tweets to indicate they were Nike marketing communications (e.g. including a hashtag such as #ad).

Another adjudication from July involved two tweets posted from Gemma Collins’ (of “The Only Way is Essex” fame) Twitter account which stated:

In @Toniandguylside having such a wonderful time defo got my hair back to good condition 10% off call today and quote #gemma x

10% off @Toniandguylside I have the most amazeballs hair colour and condition best salon ever call and say #gemma for discount xx

The ASA held (following the same logic as per the Nike adjudication a month earlier) that the tweets breached the CAP Code because, in the absence of an identifier such as “#ad”, they were not obviously identifiable as Toni and Guy marketing communications.

In addition to the CPRs and the CAP Code, there are similar rules regarding the recognition of advertising in the Code of Scheduling of Television Advertising (“COSTA”) which states that broadcasters must ensure that television advertising is readily recognisable and distinguishable from editorial content. The BCAP Code also contains equivalent rules that ads must be obviously distinguishable from editorial content.

Ofcom recently investigated a promotion for the film Prometheus that was aired on Channel 4 in April this year (see the Ofcom broadcast bulletin here). Again the concerns were that the promotion may not have been clearly identifiable as paid for advertising, caused amongst other things, by the use of social media.

During some ad breaks Channel 4 broadcast two pieces of content about Prometheus which included a call to action to viewers to send their tweets under a specific hashtag and that some viewers’ tweets may then be displayed in the next break. In the following ad break several viewer tweets were displayed which were positive towards the film.

Following a complaint, Ofcom investigated whether the activity potentially confused viewers as to whether it was an impartial editorial continuity piece or a paid-for advertisement. In this case, whilst Ofcom accepted that viewers were unlikely to be confused about whether the programme (Homeland) had actually been interrupted for an ad break, it considered that the presentation style of the ‘Prometheus’ ad risked confusing viewers in respect of its status. Ofcom noted that the first ad contained elements which it considered viewers would more usually associate with editorial content (as opposed to advertising), for example, language that suggested the channel’s ownership and endorsement of the material such as “we’d love to know what you think”, and the call to action to viewers to submit their views on the content via Twitter. Many of these elements were also present in the second ad, which contained viewers’ tweets about the trailer. Ofcom thought that this type of viewer interaction is more commonly associated with television programmes than with advertising. Additionally, Ofcom noted that the tweets displayed were all positive about the film and it may have been unclear to viewers whether they were viewing a selection of tweets selected for editorial reasons by Channel 4 or for advertising purposes.

Ofcom said it was concerned about the degree to which the content was recognisable as advertising. However, Channel 4 had told Ofcom that it had subsequently implemented steps to ensure similar presentations provide greater clarity as to their advertising nature, e.g. it would include a caption clearly stating that such material is advertising. Therefore, luckily for Channel 4, Ofcom took no further action and considered the matter resolved.

I think that what these investigations by the OFT, the ASA and OFCOM all show is that, whilst social media might provide innovative opportunities for advertisers to leverage the engagement that social media provides, it is still important to take note of the basic rules that advertising/marketing communications must be clearly identifiable as such and consumers shouldn’t be misled into thinking that something is editorial when in fact it is a paid-for promotion.