A TikTok post on Emily Canham's account, @emilycanham, seen on 14 June 2020, featured a video of Emily Canham using a GHD branded hairdryer and straighteners. A caption alongside the video stated "hiii just a lil psa there's 20% off the GHD website TODAY ONLY with the code EMILY … #fyp #foryourpage".
IssueThe complainant challenged whether the ad was obviously identifiable as a marketing communication.
Jemella Ltd t/a GHD provided a copy of a contract governing their relationship with Ms Canham, effective from 2 March 2020, under which she was obliged to provide a number of social media posts while at a music festival. As a result of the major outbreak of COVID-19 (coronavirus), the festival had been cancelled, the contract varied, and Ms Canham’s brief changed to provide a TikTok video on 26 May, a YouTube video with the accompanying promotional discount code “EMILY” across 13 to 14 June, and two Instagram posts across 13 to 14 June. They said the TikTok post-dated 14 June was created without their oversight and approval and did not form part of Ms Canham’s contractual obligations to them, and additionally she had not been compensated for the promotional code featured therein.
Emily Canham's agent said Ms Canham had not been paid for the post or received commission for the promotional code featured in the post. They said Emily had removed the video from her TikTok account.
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 Canham and GHD. Under that agreement, Ms Canham was contracted to post a number of videos and posts across her social media accounts and that one of those videos, on YouTube, should contain the promotional code “EMILY”.
We noted from the agreement that the post under investigation had been made after that agreement had been put in place, and noted the code and statement “20% off the GHD website TODAY ONLY with the code EMILY” appeared in other posts on social media made by Ms Canham as part of her contract with GHD on the same day as that post. Although we acknowledged that Ms Canham’s agent and GHD stated that the post under investigation was not paid for, we noted that the post featured the same promotional code stipulated in the agreement to promote GHD. While we understood that Ms Canham had not received commission for any sales generated through the use of the promotional code, because it was linked to the agreement, we considered the post was an ad for the purposes of the Code. We considered that the promotional code had appeared as part of an exhortation by Ms Canham encouraging consumers to buy GHD’s products, and therefore the commercial nature of the content should have been made clear prior to consumers using the code.
We assessed the post as it would have appeared in-feed on TikTok and considered that there was nothing in its content, such as “#ad” placed upfront, that made clear to those viewing it that it was an ad. We therefore concluded that the post was not obviously identifiable as a marketing communication and as such breached the Code.
The ad 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 ad must not appear again in the form complained about. We told Emily Canham and Jemella Ltd t/a GHD to ensure that their future ads were obviously identifiable as marketing communications, and that identifiers such as #ad should be clearly and prominently displayed.