A tweet, posted from Keith Chegwin's Twitter account, 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".
The complainant challenged whether the tweet was a marketing communication, and should therefore be identified as such.
Publishers Clearing House (UK) Ltd (PCH) said the tweet was not prompted by them, nor did they play any role in deciding its content; Keith Chegwin (KC) had had sole editorial control. PCH said they did have a promotional relationship with KC and their contract with him specified promotional tasks, but there was nothing which required or invited him to tweet on their behalf. They considered they were not responsible for the tweet and it was not a marketing communication, and it therefore did not fall within the ASA's remit.
PCH said that if the ASA found that the tweet did fall within its remit, it was clearly identifiable as a marketing communication and did not, therefore, breach the Code. They said KC had constructed the tweet in such a way as to make it look like a commercial communication, and it was highly unlikely that anyone could have been misled.
The ASA first considered whether the tweet was a marketing communication and therefore whether it fell within our remit. We understood that KC had not been required or invited to tweet on PCH's behalf, but we noted he was directly involved in the promotion of the competition about which he had tweeted and was featured prominently on PCH's website in relation to the competition. We considered that even if PCH's contract with KC did not specifically require or suggest that he should tweet about the competition, his tweet was directly related to his promotional activity for PCH and therefore the tweet formed part of that promotional activity; a reciprocal agreement existed in which KC was contracted to publicise PCH and PCH benefited from him doing so. We concluded the tweet was a marketing communication which fell within the ASA's remit. Furthermore, because the tweet formed part of KC's promotional activity for PCH, we considered that although KC had composed the tweet himself it was PCH's responsibility to ensure that promotional activity conducted on their behalf was compliant with the CAP Code.
We considered the average Twitter user would follow a number of people on the site and they would receive a number of tweets throughout the day, which they might scroll through quickly. We noted the Code did not just require ads to be identifiable as marketing communications but that they must be obviously identifiable as such. We noted the tweet provided a link to PCH's website, where consumers could enter the competition, and we considered the content of the website made clear that KC was acting in a promotional capacity for PCH. However, we considered it was not clear from the tweet itself that KC had a commercial relationship with PCH and therefore it would not be clear to Twitter users that KC was tweeting on PCH's behalf. In the absence of an identifier such as "#ad", we considered the tweet was not obviously identifiable as a PCH marketing communication. We concluded the tweet breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. 2.3 2.3 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. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
The ad must no longer appear. We told PCH to ensure that its advertising was obviously identifiable as such.