An Instagram post from the account of KSI (@ksi) for JD Sports, seen on 23 November 2022, featured a stylised video, accompanied by modern electronic music, of KSI and others interacting and playing games at a bowling alley and arcade. The clip included close-up shots of trainers, as well as a shot of KSI drawing attention to his shoes. The people depicted were wearing sportswear from popular brands. The ad’s closing shot featured the JD Sports logo under text that stated “KING OF THE GAME”.
The caption underneath the video stated “Welcome to the JD Arcade [devil emoji] Head over to the @jdofficial YouTube channel to watch the full length film #kingofthegame”. The post tagged “jdofficial” and “@adidasoriginals”.
The complainant challenged whether the Instagram post was obviously identifiable as a marketing communication.
In relation to social media posts, JD Sports Fashion plc t/a JD Sports understood that the inclusion of ad labels, such as “#ad”, was only required if ads were not already obviously identifiable as such. They believed that various aspects of the ad made clear that it was a marketing communication. They highlighted that the post’s caption directed viewers to the JD YouTube channel and referred to a “full length version” available there. They also believed the video’s high production value and elaborate set dressing were suggestive of a professional ad agency’s involvement. The ad featured over 28 celebrities, including England international footballers and famous rappers. They believed that viewers would recognise as highly likely that such a varied group of high-profile individuals had been assembled as part of an advertising campaign.
They added that, before it was posted on KSI’s Instagram account, the video itself had already achieved wide reach on account of its prior appearance as a paid-for ad in other media, including in TV spots with particularly large audiences and as a billboard ad in public locations with high footfall. JD Sports also highlighted that their TV ad had featured in press coverage of Christmas ads in 2022 and had been widely discussed on social media due to its range of celebrity cameos. For those reasons, they thought that consumers were likely to have previously encountered the video in the contexts where its status as an ad for JD Sports was obvious. Because of that, they believed that many viewers would instantly recognise the Instagram post as a marketing communication.
JD Sports confirmed that KSI had been contracted through a third-party agency to post ads on their behalf. As part of their contractual relationship, they had agreed on the schedule and content of all ads with KSI’s representatives prior to their posting. In particular, the ad complained of had been produced with their approval.
Mr Olatunji t/a KSI stated that, at the time the ad was posted, he believed that the references to JD Sports in the post’s caption, and the brand’s logo featured in the video’s closing shot, made clear to consumers that the video was an excerpt from a TV ad for JD in which he had featured. However, upon notification of the complaint, he included “#ad” in the post’s caption in order to mitigate any risk of consumers being misled.
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. We considered that consumers should be immediately made aware that a post was an ad.
The ASA understood that Mr Olatunji had a contractual relationship with JD Sports in which he was paid to post about JD Sports on social media. The post was therefore a marketing communication for which JD Sports and Mr Olatunji were jointly responsible for ensuring was compliant with the CAP Code.
The post’s caption featured some elements that some consumers might have interpreted as signalling a commercial relationship between JD Sports and Mr Olatunji, including the reference to the “JD Arcade”, the “@jdsportsofficial” tag, and the instruction to view the “full version” of the featured video on JD Sports’ YouTube channel. However, in each case, the language used exclusively focused on the JD Sports brand itself, rather than its relation to Mr Olatunji. We therefore considered those elements did not amount to a clear statement of the commercial relationship between Mr Olatunji and JD Sports, which would be immediately understandable to consumers.
JD had referred to the content of the video itself, including its range of celebrity cameos and production style. However, those elements would have only been seen by consumers in the course of viewing the ad. In addition, while some viewers may have previously encountered the ad in a paid-for medium or in public discourse, many would not have.
We welcomed Mr Olatunji assurances that the post had been amended to include “#ad”. However, at the time the ad was originally seen, the commercial intent behind the post was not made clear upfront and the ad was not obviously identifiable as such. We therefore concluded that it breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
The ad must not appear again in the form complained of. We told JD Sports Fashion plc t/a JD Sports and Olajide Olayinka Williams Olatunji t/a KSI to ensure that in future their ads were obviously identifiable as marketing communications and made their commercial intent clear upfront, for example, by including a clear and prominent identifier such as “#ad”.