Two Twitter posts from the account of Rio Ferdinand (@rioferdy5), for PlayStation, seen on 27 May 2022:
a. The first tweet included a video of Rio Ferdinand discussing the upcoming Champions League final between Liverpool FC and Real Madrid. Accompanying text stated “Here’s who I think will be taking home the [trophy emoji] … Class day down at #PlayStationHouse ahead of the #UCLFinalv … @PlayStation #PlayStationPartner”.
b. The second tweet included images of Rio Ferdinand taking part in various activities at the “PlayStation House” social event prior to the Champions League final. Accompanying text stated “Some day [fire emoji] #PlayStationHouse”.
IssueThe complainant challenged whether the tweets were obviously identifiable as marketing communications.
Sony Interactive Entertainment Europe Ltd said that they had a compliance programme in place, including social media guidelines, and that the only form of disclosure recommended in their guidelines was “#ad”. Their internal guidelines were supplied to all influencers they worked with, including Rio Ferdinand, and were incorporated into contracts they signed with influencers.
Sony confirmed that Mr Ferdinand had been contracted through his agency to provide services, including one tweet, which was ad (a). They said that ad (b) was a reply from Mr Ferdinand to his original tweet, within the same Twitter thread, and had not been a requirement of the contract, but an organic response in an ongoing thread.
They said the contract specified that all social media posts needed to be labelled with appropriate disclosures, and include “#ad” at the beginning of each post. Sony also said that a separate guidance document, prepared by their own agency and approved by Sony, had been provided to Mr Ferdinand concerning the specific event. That document incorrectly included the option to use “#PlayStationPartners” as a means of disclosure. Despite that, Sony said they believed that ad (a) was obviously identifiable as a marketing communication and therefore did not mislead consumers, irrespective of the hashtag used.
Sony pointed out that the video in ad (a) was filmed in a prominently PlayStation-branded studio, and that the format, of Mr Ferdinand being interviewed by a professional video gamer about the upcoming Champions League final, made it obvious that it was not independently created content, but rather collaborative content created for marketing purposes. They believed that was reinforced by their own longstanding and high-profile sponsorship of the Champions League.
Sony highlighted that the video in ad (a) contained PlayStation and Champions League logos on-screen for its duration. They also said that the overall branding and set dressing of the video, with Mr Ferdinand being surrounded by PlayStation branded merchandise and fixtures, such as mugs and signs, and the Champions League trophy, along with various items such as PlayStation controllers and a colour scheme which reflected the brand, meant that consumers would understand that the video was an ad.
Sony said that ad (b) had not been a requirement of their contract with Mr Ferdinand, though it did contain photographs taken by a professional photographer on the day the video in ad (a) had been recorded, which Sony had supplied to Mr Ferdinand for his own use afterwards. They said that because the four photos used in the post contained PlayStation branding, the setting was clearly a publicity event, and the post was threaded under ad (a), they believed that consumers would understand it to be a marketing communication.
Addressing the overall impact of the ads, Sony said that it was their belief that the presentation, tone and style of ad (a) was suitably different from Mr Ferdinand’s usual Twitter posts to differentiate it as a marketing communication, and that neither ad falsely presented Mr Ferdinand as a consumer, but rather as a footballing expert. Sony said while they accepted that “#PlayStationPartner” was not their recommended disclosure, they thought that the term “Partner” did suggest a commercial relationship, which was reinforced by the heavy presence of PlayStation branding and the tone and presentation of the ads. They also said they believed that a disclosure such as “#ad” was not always necessary.
Representatives of Mr Ferdinand confirmed that he attended the Paris event as part of an activation by Sony to promote the Champions League Final. They said that Sony’s media agency had advised them to use the tag “#PlayStationPartner” when posting about the event, which at the time they thought would be sufficient to meet the requirements of the CAP Code. They also said that they thought the ad (b) was a comment on a post, and not a standalone post in its own right, and therefore did not believe that it required a hashtag when it was posted.
Mr Ferdinand’s representatives said that they were willing to remove the posts in question if required.
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 made aware that a post was an ad before they engaged with it.
The ASA understood that there was a financial agreement between Sony Interactive Entertainment Europe Ltd and Rio Ferdinand which involved a contractual agreement that covered ad (a), the initial Tweet concerning Mr Ferdinand’s visit to “PlayStation House”, and that as part of that agreement, Mr Ferdinand was provided with a brief detailing the content, format and number of social media posts relating to their collaboration.
Although we acknowledged that the contractual agreement between Sony and Mr Ferdinand did not include the content of ad (b), we noted that Mr Ferdinand had used the hashtag “#PlayStationHouse”, and that the tweet had been included in the Twitter thread started by ad (a). Although the contractual agreement between Sony and Mr Ferdinand did not explicitly require ad (b) to be posted, we noted that the hashtag used referenced the PlayStation brand and Sony’s promotional event, and that the images used had been provided by Sony. We considered that in that context, Sony had exerted sufficient control over the content of the post, in conjunction with a payment arrangement concerning ad (a), for it to be considered a marketing communication falling within the remit of the CAP Code.
We therefore understood that both the posts fell within the remit of the Code, and that both parties were jointly responsible for ensuring that promotional activity conducted by Mr Ferdinand on behalf of Sony was compliant with the Code.
We understood that Mr Ferdinand’s use of the tag “#PlayStationPartners” was intended to refer to his commercial relationship with Sony, and that the tag had been suggested to him by Sony in their guidance document, albeit in error. We also acknowledged Sony’s assertion that the branding and set dressing of the ads meant that followers of Mr Ferdinand’s Twitter account were likely to understand that the posts were marketing communications.While the posts contained some elements that indicated there might be a commercial relationship between Sony and Mr Ferdinand, we considered that the language used was not sufficiently clear to ensure that the posts were obviously identifiable as ads. We did not consider that tagging the posts with “#PlayStationPartners” or "PlayStationHouse" amounted to a clear acknowledgment of the commercial relationship between Mr Ferdinand and Sony, which would be immediately understandable to a consumer.
We also considered that while the ads may have featured prominent logos and set dressing relating to Sony products and the UEFA Champions League, those elements were only relevant to the existing and well-known relationship between Sony and UEFA, and did not make clear the commercial relationship between Sony and Mr Ferdinand, which we did not believe the average consumer would be aware of. In addition, a number of the elements Sony pointed to in relation to ad (a) which added context within the video, would only have been seen by consumers after they engaged with the content of the ad.
Given the above, we concluded that they should have been clearly labelled as ads, and we therefore concluded that they breached the Code.
The ads breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 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 not appear again in the form complained about. We told Sony Interactive Entertainment Europe Ltd and Rio Ferdinand to ensure that in future their ads were obviously identifiable as marketing communications and made clear upfront their commercial intent, for example, by including a clear and prominent identifier such as “#ad”.