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.
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’ for more on jurisdiction).
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.
As you would expect, the rules cover the pre-roll video ads that appear on video sharing websites such as YouTube, as well as the display ads both on the website and which appear during video content.
They also cover ‘paid-for’ advertising on social media websites and apps, such as ‘Promoted’ tweets on Twitter, ‘Promoted’ posts on Reddit, ‘Promoted’ pins on Pinterest, ‘Sponsored’ posts on Facebook and Instagram, and the ‘Sponsored’ stories (and adverts that appear within other stories) on Snapchat.
It is usually the case that advertising like this is obviously identifiable as such through its positioning, labelling and wider context. Each social media channel has its own conventions for displaying advertising which, arguably, becomes quickly recognisable to users.
The Code also covers ‘influencer marketing’ content appearing on social media, be it in the form of a blog, vlog, tweet, post or other channel-specific format. These posts tend to be either ‘advertorial’ or ‘affiliate’ ads, but instances where an influencer is promoting their own products/services etc. would also be covered. Though the ASA recognises there are differences between the arrangements behind ‘advertorial’ and ‘affiliate’ advertising, it’s important for influencers and brands to understand that both are subject to exactly the same rules (including the requirement for them to be clearly labelled as ads).
When it comes to ‘advertorial’ content, if a brand gives an influencer a payment, free item, or other ‘perk’, any resulting posts referencing the brand or their products become subject to consumer protection law, enforced by the Competition and Markets Authority (CMA) and others, such as Trading Standards. When a brand also has editorial control over the content, they become subject to the CAP Code as well. Further guidance on this can be found in our advice on ‘Remit: Advertisement features’. When a particular ‘advertorial’ is found to breach the Code, both the publisher (i.e. the influencer) and the brand will be named in the ASA ruling.
Similarly, when the ASA assesses marketing content created by ‘affiliates’ — influencers or members of the public receiving some form of commission, and anyone contractually obliged to promote or advertise a company or product — the ASA will consider the brand at least jointly responsible for this content (See ‘Online Affiliate Marketing’).
Own social media
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).
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’).