Two tweets for Nike were posted in January 2012 on Twitter from the official accounts of Jack Wilshere and Wayne Rooney.
a. The tweet from Wayne Rooney stated "My resolution - to start the year as a champion, and finish it as a champion...#makeitcount gonike.me/makeitcount".
b. The tweet from Jack Wilshere stated "In 2012, I will come back for my club - and be ready for my country. #makeitcount.gonike.me/Makeitcount".
The complainant challenged whether both tweets were obviously identifiable as marketing communications.
Nike (UK) Ltd (Nike) believed the tweets should be viewed in the context in which they appeared and said Twitter was a more direct channel of communication between two parties, than traditional media. They said Wayne Rooney and Jack Wilshere were communicating to Twitter members who had chosen to "follow" them and that both footballers were well known for being sponsored by Nike, as were the teams for which they played; Manchester United and Arsenal respectively. They believed, therefore, that Wayne Rooney and Jack Wilshere's Twitter followers would not be misled about the relationship between the footballers and Nike.
Nike explained that for their "#makeitcount" campaign, they had spoken to both footballers to determine what their goals were for 2012 and, over the New Year, both had tweeted their pledges along with a link to a film in which they were appearing. They said both players could then independently reply to or retweet consumer tweets to them at their own discretion.
Nike believed the tweets could be objectively viewed as marketing communications because of the presence of the Nike URL within the body of the tweets, which indicated that the tweets' purpose was to direct followers to the Nike website. They provided examples of personal tweets by both footballers which did not contain the Nike URL and did not refer to their professional capacity as footballers. They said when viewed alongside each other, which was similar to the way followers would view a Twitter feed, they believed it was clear which were personal tweets and which were ads. They believed that the inclusion of the Nike URL, combined with the Nike campaign strap line #makeitcount, made sufficiently clear that those tweets were advertising.
The ASA understood that, as part of their sponsorship deal with Nike, the footballers were required to take part in marketing activities and that both were asked to submit their own ideas as to what to write as part of their tweet. We understood that the tweet's final content was agreed with the help of a member of the Nike marketing team.
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 may 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 ad included a Nike URL which directed users to the Nike website and that it contained the hashtag, #makeitcount which referred to their new “make it count” campaign that launched around the same time the tweets appeared. However, we considered that the Nike reference was not prominent and could be missed, consumers would not have already been aware of Nike’s “#makeitcount” campaign and that not all Twitter users would be aware of the footballers’ and their teams’ sponsorship deal with Nike. We considered there was nothing obvious in the tweets to indicate they were Nike marketing communications. In the absence of such an indication, for example #ad, we considered the tweets were not obviously identifiable as Nike marketing communications and therefore concluded they breached the Code.
Ads (a) and (b) 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 ads must no longer appear. We told Nike to ensure that its advertising was obviously identifiable as such.