An Instagram story and four Instagram posts on Victoria Magrath’s Instagram account @victoria:
a. The Instagram story, seen on 30 May, contained an image of a shoe with an affiliate link for Jimmy Choo. Text on the image stated “a d/affiliate”
b. The Instagram post seen on 29 and 30 May contained four images. The first image was of a woman holding a Jimmy Choo bag, tagged to Jimmychoo. Accompanying comments stated “@jimmychoo, prtrip #jimmychoosummer”.
c. The Instagram post, seen on 30 May, showed a video of a woman walking from a balcony wearing an evening dress and carrying a bag. Accompanying comments stated “@miumiu @flannels @jimmychoo #presstrip #jimmychoosummer”.
d. The Instagram post, seen on 1 June, contained three images. The first image was of a woman on a minigolf course holding a bag, tagged to Jimmychoo. Accompanying comments stated, “a d. On Mondays we play Mini Golf in @jimmychoo #jimmychoosummer”.
Two complainants challenged whether the posts were obviously identifiable as marketing communications.
Jimmy Choo said they had a long-standing commercial relationship with Victoria Magrath and provided her most recent Annual Digital Content Agreement. They explained that Ms Magrath had attended their Saint-Tropez Trip as an ambassador under the terms of that agreement and it was mutually agreed that only one Instagram post was required. They said she selected the mini golf photo and that it had been captioned with “a d. On Mondays we play Mini Golf @Jimmychoo #jimmychoosummer”. They said that their agreement stated that posts should be tagged “paid partnership with”, however the marketing team approved Ms Magrath’s caption “a d.” because that was in line with the CAP Code.
They also provided redacted communications which showed that “a d. On Mondays we play Mini Golf” had been agreed by both parties. Additional communication referred to the contracted brief for trip content and that this brief had originally also stipulated additional organic coverage. The communication referenced that Ms Magrath’s team had said they wouldn’t be able to take any direction with regard to organic content due to ASA restrictions and that this would constitute editorial control, although that did not mean she would not produce any.
They said that the two posts dated 29 and 30 May respectively were not part of their contractual agreement with Ms Magrath and therefore they had not had any editorial control over them.
In the Frow, responding on behalf of Ms Magrath, said that the Instagram posts seen on 29 and 30 May (ads (b) and (c)) was content that was not paid for nor part of any ongoing commercial commitment. The brand was not offered any editorial control in terms of the content created or shared. They said Ms Magrath had disclaimed that she was on a PR trip through the use of the Hashtag #prtrip. They said that in the case of ads (a) and (d), the use of “a d” was an oversight and they had since amended the captions to disclaim the ads as per the CAP Code.
The CAP Code stated that marketing communications must be obviously identifiable as such and that they must make clear their commercial intent, if that was not obvious from the context. The ASA understood that there had been a financial agreement in place between Ms Magrath and Jimmy Choo. We noted that Ms Magrath was contracted to post a specific number of posts across her Instagram account during a 12-month period, and that all the ads under investigation had been made within the period covered by that agreement.
We noted that there was an explicit expectation that Ms Magrath would post one ad whilst on the PR trip as an ambassador for Jimmy Choo. We understood that post was ad (d), which was therefore required to be obviously identifiable as an ad. In relation to ads (b) and (c), while we understood the posts were not paid for individually, they were posted during the contracted period. We noted that as part of being contracted to act as an ambassador, Ms Magrath was required to wear Jimmy Choo products on social media where possible, and initially there had been an expectation from Jimmy Choo that additional organic content would be created whilst on the trip. The contract also included a term requiring Ms Magrath not to disparage Jimmy Choo to the media. We therefore considered that the advertiser had an element of editorial control over the posts, and given that there was both payment and editorial control, the posts were marketing communications for the purposes of the Code, and should have been obviously identifiable as such.
We acknowledged that in relation to ads (a) and (d), there had been an attempt to disclose the commercial nature of these posts, however neither Jimmy Choo nor Ms Magrath had identified the inaccurate spelling of “ad”. We considered that the use of “a d” in that way obscured its meaning, and meant that those posts were not obviously identifiable as ads, although we acknowledged that this was not deliberate. We also considered that the labelling in ads (b) and (c), including “prtrip” and “#presstrip” were insufficient to ensure they were obviously identifiable as ads.
We therefore concluded that the ads breached the Code.
The ads breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 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. (Recognition of marketing communications).
The ads must not appear again in the form complained about. We told Jimmy Choo and Victoria Magrath to ensure that their future posts were obviously identifiable as marketing communications, for example by including a clear and prominent identifier upfront, such as “#ad”.