A tweet from the official Twitter account of racecourse trainer Nicky Henderson, posted on 27 October stated “We’re underway with the jumps and my exclusive @unibet blog is now ready to read …”. A link to the blog was included.
The complainant, who believed that Unibet had editorial control over the tweet, challenged whether it breached the CAP Code.
Platinum Gaming Ltd t/a Unibet responded that they did not consider the tweet to be a marketing communication. They said that they had a reciprocal arrangement with Mr Henderson, who was their brand ambassador. That arrangement required Mr Henderson to display Unibet branding, but they did not require him to tweet on their behalf and they did not have any editorial control over Mr Henderson’s Twitter account.
Unibet said that as part of their agreement with Mr Henderson, he would conduct regular interviews with a broadcaster about his stables and upcoming races. Those interviews would then be transcribed into a blog, which Mr Henderson would publicise over his social media accounts.
Unibet provided a copy of their contract with Mr Henderson. The contract stated that they paid Mr Henderson to be an ambassador for their brand and included a term that stated that one of Mr Henderson’s obligations as brand ambassador was to allow Unibet to manage, with his assistance, his social media activity throughout the term of the agreement. The contract stated that Mr Henderson was required to start a Twitter account that would be managed by Unibet on his behalf, though he would have the right to approve all tweets sent on that account.
Unibet said that the contract did not reflect the reality of their position and that, in practice, the posts on Mr Henderson’s account were mostly posted by other people on his behalf, but that those people were not related to Unibet. Unibet said their contract with Mr Henderson was a generic contract that they used for all their ambassadors and although the contract said that Unibet would set up and run a Twitter account for Mr Henderson, Mr Henderson already had a Twitter account and they did not consider that they needed to have any input into it. Unibet said that the basis for the contractual provision for Unibet to have editorial control of the Twitter account, with Mr Henderson supporting and approving as necessary, was to account for situations in which the Unibet ambassador was not familiar with or was unable to update the social media account. As Unibet were satisfied that Mr Henderson did not require direct assistance to fulfil his obligations they did not facilitate him in doing so.
Nicky Henderson said that he agreed with Unibet’s view that the tweet was not a marketing communication, for the same reasons.
The ASA understood Unibet and Mr Henderson believed that Mr Henderson’s tweets would be defined as editorial content and therefore would not fall within the scope of the CAP Code. We therefore first assessed whether the tweet was a marketing communication or editorial content.
The key tests as to whether the tweet was an ad were, firstly, whether Unibet had paid Mr Henderson or entered a reciprocal agreement with him and, secondly, the degree of control that Unibet had over the content of the tweet.
Unibet and Mr Henderson had entered into an agreement whereby Mr Henderson acted as a brand ambassador for Unibet, involving a range of activities, including a requirement that he published a blog on social media, and that he periodically updated his social media accounts. We therefore considered that Mr Henderson had been paid by Unibet to promote their brand, including on social media.
We also assessed whether Unibet had control of the content of Mr Henderson’s tweets. The agreement stated that Mr Henderson’s account was to be managed by Unibet, however, Unibet had told us that in practical terms they did not run the account. Instead, tweets were published by Mr Henderson or his representatives without input from Unibet. We noted the exception was that Mr Henderson was specifically contractually obliged to update his followers about his regular blog and make exclusive announcements when required.
We considered that, because Unibet required Mr Henderson to post about his blog on social media they did have control over the content of tweets relating to the blog. We therefore considered that, the tweet, which contained a link to Mr Henderson’s blog, was a marketing communication and should have been obviously identifiable as such.
We further considered whether the ad was obviously identifiable as a marketing communication. We noted that Mr Henderson’s Twitter profile stated that he was a Unibet Ambassador. However, we did not consider this was sufficient to differentiate between tweets that were marketing communications and those that were not. We noted that some of Mr Henderson’s tweets that were not marketing communications would identify Unibet by tagging Unibet into the post or included references to Unibet sponsored races. On that basis, we considered that it was not clear which tweets on Mr Henderson’s account were marketing communications for Unibet. The tweets for Mr Henderson’s blog, therefore, should have been identified as such. We concluded that the ad, therefore, was not obviously identifiable as a marketing communication.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. 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 not appear again in its current form. We told Unibet and Mr Henderson to ensure that their future marketing communications were obviously identifiable as such, for example by using an identifier such as “#ad”.