Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
On 1st October, we will be holding our Influencing Responsibly event, a training event on the rules for influencers, creators and bloggers.
The CAP Code covers many different types of advertising in social media, from the more traditional ‘paid-for’ ads to advertorials and affiliate marketing, and also - since 2011 - some of the content on a company’s own social media channels. That said, it’s important to remember that the CAP Code necessarily excludes material in ‘foreign media’ (See ‘Remit: Country of origin’).
Marketers should bear in mind that when material is considered as falling within the scope of the Code, all of the relevant rules within the Code apply. Although the rules apply equally to material across all platforms, the ASA does take into account the differences between them in terms of audience and functionality as part of the context when considering whether a breach has occurred.
It is usually the case that advertising like this is obviously identifiable as such through its positioning and each social media channel has its own conventions for displaying advertising which quickly becomes recognisable to users.
The ASA often receives complaints about company social media accounts, such as Twitter feeds, Facebook pages and Instagram accounts, to a lesser extent about Linkedin, Google+ and Pinterest pages and, at present, only very rarely about content on Snapchat.
While the Code covers some material on a company’s own social media channels it doesn’t necessarily cover everything in such space. The main principles for determining whether specific material on a company’s own social media channel falls within the scope of the code are the same as for a company’s own website, i.e. is the material directly connected to the supply or transfer of goods, services, opportunities or gifts or a direct solicitation of donations (See ‘Remit: Own websites’).
However, given the nature of social media and the role it plays in creating brand awareness and engagement, marketers should be aware that any content that bears a relationship to the products or services they offer has the potential to be considered directly connected and therefore within the ASA’s remit. A tweet that stated "#TheMasters has started! #yippee" and another which stated “FILL IN THE BLANK: I think Jordan Spieth will win__Majors in 2015” from gambling operators were both considered to be within the scope of the Code, because although they didn’t refer to any specific bets or odds, they were nevertheless promoting the brand and commenting on an event that the advertiser would be offering bets on. They were therefore considered to be directly connected with services offered by the advertisers (WHG (International) Ltd t/a WillHillBet, 17 June 2015; Hillside (UK Sports) LP t/a Bet365, 28 October 2015).
It is also important to note that there are some instances in which the ASA will consider that user-generated content (UGC), such as social media posts, tweets, photos, reviews and blogs/vlogs created by private individuals, is subject to the CAP Code. Most commonly this will occur when content is “adopted and incorporated” into a marketer’s own marketing communications. For example, if the marketer requests content from users and then places that content on their social media channel (Aston Manor Brewery Company Ltd, 13 June 2012). But, “adopting and incorporating” can also include retweeting, commenting on, or even simply “liking” a user’s post (192.com Ltd, 20 November 2013).
This does not prevent marketers from implementing a reasonable moderation policy (N5 Ltd, 4 September 2013). However, where a moderation policy has the effect of curating UGC to remove any content which is negative for the marketer, the ASA is likely to consider that the UGC has been “adopted and incorporated”. For example, if a marketer’s website allows users to submit ratings and reviews, but they only publish positive reviews, it is likely the ASA would regard this as excessive moderation and those reviews would be subject to the CAP Code.
Where user-generated content (UGC) is considered within remit, the CAP Code applies in full and marketers will need to make sure that the content is responsible and not misleading, harmful or offensive. So, if the UGC contains an efficacy claim the rules on substantiation will apply, or if it relates to alcohol Section 18 will apply (Ionic Balance, 18 December 2013; Hi Spirits, 9 January 2013).
Entirely unprompted UGC, where a customer initiates the communication by tweeting to your handle or posting to your timeline, and which the marketer does not endorse by retweeting/’liking’ or similar would be considered outside the remit of the CAP Code (N5 Ltd, 4 September 2013).
On platforms where consumers must actively seek out information about what user-generated posts have been 'liked' by an advertiser's account, and where 'liking' a post does not cause it to be pushed back out to the advertiser's followers or to the original poster's friends/followers, or cause it to appear on the advertisers' own page, the 'liked' post is likely to fall outside the ASA's remit.
Marketers should also bear in mind that publicly visible responses to questions posed to them on social media, as part of customer relationship management, could be considered within the remit of the Code if they include claims that the ASA would consider to be advertising (See ‘Remit: Own websites’).
The Code also covers advertorial content appearing in social media, be it in the form of a blog, vlog, tweet, post or other channel-specific format (See ‘Advertisement features’ and ‘Vlogs: Scenarios’).
Marketing communications created by affiliates — members of the public acting as sales representatives and anyone contractually obliged to promote or advertise a company or product — are equally covered by the Code and the ASA will consider the brand at least jointly responsible for the content (See ‘Remit: Affiliate marketing’).
By way of an example, a tweet from Keith Chegwin that stated "Just a quickie: Log on to pchprizes.co.uk 4 Your chance 2 win £100k plus Win £2,500 a week 4 life. Have a go X" was considered to be within remit because, while he had not been specifically required or invited to tweet on the marketer’s behalf, he was contractually obligated to promote them and that promotion in particular (Genting Alderney Ltd t/a Publishers Clearing House, 9 January 2013).
Social media posts arising from a sponsorship deal have also been considered within remit. Tweets from Jack Wilshere and Wayne Rooney including the hashtag ‘#makeitcount’ and the address ‘gonike.me/makeitcount’, and also a tweet from Wayne Rooney which stated "The pitches change. The killer instinct doesn't. Own the turf, anywhere. @NikeFootball #myground" have previously been considered in remit by virtue of a sponsorship arrangement (Nike UK Ltd, 20 June 2012; Nike (UK) Ltd, 4 September 2013).
Promotional marketing in non-broadcast media is covered by the Code in any event but a tweet by Gemma Collins, on behalf of Toni and Guy, making reference to her satisfaction with their service and offering consumers a discount was considered to be a marketing communication because they had waived their fees and asked her to tweet a promotional offer (Toni and Guy (Lakeside) Ltd, 11 July 2012).
Tweets from the official accounts of Rio Ferdinand and Katie Price which formed a chain of five, with the first four tweets containing out of character comments for the celebrities, followed by a fifth ‘reveal’ message that showed an image of the celebrity with a Snickers chocolate bar and the text “You’re not you when you’re hungry @snickersUk #hungry #spon” were also considered to be a marketing communication by virtue of there being both payment and editorial control by the brand (Mars Chocolate UK Ltd, 7 March 2012).
However, a tweet from a journalist about an article she had written for The Times and a link to it which lead to a pay wall requiring a subscription to The Times in order to finish reading the article, was considered not be a marketing communication. Although the ASA recognised that both the journalist and the paper could benefit from an increase in the number of people subscribing to the paper, they also considered the fact that the journalist was under no contractual obligation to promote the paper and that the paper had no control over the content of the journalist’s personal tweets.