Legal social media guidance for celebrity endorsement as presented by Nicola McCormick of Michael Simkins LLP 03 Oct 2012 with TIffany St James

1. Social Media Marketing:
Legal & Commercial Best Practice

2. Agenda
• What does the law say?
• What does the law mean?
• What do the regulatory codes say?
• What do the regulators want to see?
• What guidance is there to interpret all this?
• A look at high profile examples
• A fuss-free list of what to do
• A test!

3. What does the law say?
Consumer Protection from Unfair Trading Regulations 2008
Applies to all marketing communications
Prohibits:
► Using editorial content in the media to promote a product where a trader
has paid for the promotion without making it clear in the content or by
images or sounds clearly identifiable by the consumer (advertorial)
►Falsely claiming or creating the impression that the trader is not acting
for purposes relating to his trade, business, craft or profession, or falsely
representing oneself as a consumer

4. What does the law mean?
1. If a brand pays for a reference in any editorial content then it must
ensure that there is reference within the content to the fact of payment
● editorial content is not defined in the legislation and at its broadest means anything
that is not advertising and which provides comment, opinion or news
● it doesn’t matter whether or not the brand has written the editorial content
● payment need not be in money but can be vouchers, discounts, free
products/services
2. A brand must not set up a fake blog to promote its products/services
3. A brand must not pose as a consumer to post reviews of its products or
services

5. What do the regulators say?
CAP Code (enforced by the ASA)
1. Marketing communications must be obviously identifiable as such
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
2.4 Marketers and publishers must make clear that advertorials are
marketing communications; for example, by heading them “advertisement
feature”

6. What do the regulators mean?
What is a marketing communication for the purpose of the CAP Code?
print, posters, cinema, direct marketing, emails, texts, online banner or pop-up
advertisements and online video advertisements, paid-for search listings,
preferential listings on price comparison sites, virals, in-game advertisements,
commercial classified ads, advergames, bluetooth ads, advertisements distributed
through web widgets, online sales promotions and prize promotions, advertorials,
own websites, other non-paid-for space online under a brand’s control
[NB may control a tweet if not a whole Twitter account and a blog entry if not the
whole blog]

7. What does it mean altogether?
In very simple terms in relation to brand references in tweets and blogs:
The Law says: if you ‘pay’ for the reference -
make it clear
The Regulators say: if you control the reference
editorially - make it clear
Both say: don’t pose as a consumer

8. What does the guidance say?
How do you make a tweet obviously identifiable as a marketing
communication?
The ASA says it will assess each tweet on its own merits, but is likely to
take into account factors such as:
• the time-lapse between any teaser tweets and any advertising reveal
• the understanding of the audience and
• the context in which the tweets appear
before they decide whether or not the tweets are sufficiently recognisable
as an ad or whether the tweets need to do more to convey their advertising
intent

9. What does the guidance say?
IAB, ISBA, CAP and OFT together produced guidelines for compliance with the
law and regulatory regime. The guidance states that where payment is made for
the making of a marketing communication:
►whether payment is made in cash or free products this must be disclosed
►the marketer must comply with platform providers T&Cs
►the marketing communication must comply with CAP code as to content
How do you disclose the fact of payment?
In a tweet By including #ad or #spon
In a blog In words within the relevant post
By adding the nofollow attribute to any hyperlink

10. Give me some examples…..
Snickers: the campaign
Really getting into the knitting!!! Helps me relax after
high pressure world of the Premiership
Can’t wait 2 get home from training and
finish that cardigan
▲
Just popping out 2 get more wool!!!
one
hour
▼
Cardy finished. Now 4 the matching mittens!!!
You’re not you when you’re hungry @snickersUK #hungry #spon

11. Give me some examples…..
Snickers: the ASA Ruling March 2012
ASA said:
●Each tweet formed part of an orchestrated ad campaign
●The first 4 tweets were teasers, made no reference to Snickers & were posted in quick
succession
●The fifth tweet showed the celebrity, the product, the campaign strapline and #spon
which in combination made it clear the tweets were all marketing communications

12. Give me some examples…..
June 2012
Is this obviously identifiable as a
marketing communication?
No
ASA said:
●Nike reference not prominent and could be missed
●Not all twitter users would be aware of Nike’s #makeitcount campaign
● Not all twitter users would be aware of Nike’s sponsorship of the team
●Did not include #ad

13. Give me some examples…..
Toni and Guy July 2012
In@Toniandguylside having such a wonderful time defo got my hair
back to good condition 10% off call today and quote #gemma x
10% off @Toniandguylside I have the most amazeballs hair colour
and condition best salon ever call and say #gemma for discount xx
ASA said:
In the absence of an identifier such as #ad they were not obviously identifiable
as marketing communications

14. What should I do?
Publisher Type of Communication Action
Paid Celebrity Any tweet mentioning the brand Include #ad
Re-tweeting any other person’s Include #ad
comment about the brand
Re-tweeting brand’s own tweets Include #ad
Reference to brand in own blog ● Must identify status as
paid brand ambassador
● Any link to have nofollow
attribution
Comment posted on any forum Must identify status as
paid brand ambassador
NB: where brand has editorial control over what celebrity says the content must
also comply with the entirety of the CAP code

15. What should I do?
Publisher Type of Communication Action
Blogger receiving free Any blog entry mentioning the Blogger must state that free
goods or payment brand (edited or not) goods received within blog
post
Any hypertext link to a brand Include nofollow attribute
website
Twitterer receiving free Any tweet mentioning the Include #ad
goods or payment brand
Any re-tweet mentioning the Include #ad
brand
Blogger making Any No action required
unsolicited comments

16. Test

17. Test

18. Thank you