Earlier this month the IAB and ISBA issued guidelines specifically addressing the issue of celebrity endorsements within social media. Or, to give it the more legal title, ‘the payment for editorial content to specifically promote a brand, product or service within social media’. The guidelines have been developed in consultation with the Office of Fair Trading (OFT) and the Committee for Advertising Practice (CAP).
The guidelines do not change the law; the law in this area has been established for some time under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) which specifically prohibits “using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).” The CPRs also prohibits: “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.”
The wording of these legal provisions does not immediately suggest they apply to tweets or Facebook posts; these are not what many of us relate to as “editorial content”. Nor might it be clear that if, say, a luxury car brand has provided a celebrity with a free car, for them to tweet or post about that car either in words or via a picture post would be a paid-for promotion.
This issue was highlighted in the Handpicked Media case [archived page] which the OFT described as a “precedent setting” enforcement action. Handpicked Media operated a network of bloggers and niche websites across a variety of sectors. The OFT took the clear view that such paid-for blogging and promotion should be disclosed to consumers to ensure that they are not misled. In the enforcement action, the OFT decided that Handpicked Media was in breach of the CPRs and required Handpicked Media to provide undertakings that it would make disclosures to consumers in the future of the paid-for nature of its editorial content.
Perhaps inspired by the Handpicked Media investigation, IAB explained that brands knew they must comply with the law but were breaking the law unwittingly in the social media space. The guidelines were issued to address this problem by giving practical advice and clear examples.
The guidelines provide three basic rules:
1. If a payment has been made (either in cash or free products), the author or publisher must disclose this.
2. Authors must comply with the terms and conditions of the social media platforms they are using and the search engines likely to index the content.
3. The ‘marketing communication’ must comply with the CAP code.
To ensure there was no doubt about what points 1 and 2 mean in practice, the guidelines specifically address each type of social media. A summary of these examples is:
Although this does not change the law there are likely to be some surprises for many in these examples, notably:
3. The fact that the requirements extend to consideration of search and use of ‘nofollow’ (Google and many other search engines require paid for links to be designated by adding rel=”nofollow” attribute to the tag; again this is based on the principle that payments for content should be disclosed);
4. The pro-active requirement to confirm with a forum owner that paid for content may be posted if there is no prohibition in the terms or moderation guidelines (although this is described in the guidelines as a breach of etiquette rather than a legal compulsion so it is unclear whether strictly this would be a breach of the CPRs).
- All EU countries are required to have local laws derived from the EU Unfair Commercial Practices Directive, which is the origin of the CPRs in the UK;
- Similar rules have applied in the USA since 2009 when the FTC published the AFAIK guidelines. These specify that endorsements via conventional, online or social media must contain a clear disclosure. For Twitter users this is indicated by #spon or #ad.
1. Ensure the social media guidelines for employees and contractors within your organisation are clear and take account of the CAP code and CPRs giving practical examples to assist users particularly for the areas of unwitting breach. One example of potential unwitting compliance that many are unaware of is by simply retweeting a customer’s tweet, the company would be responsible for the content of that customer’s tweet. If a customer said “Go to X shop and buy Y car now for £Z – I just got one and I love it”. If X shop or Y car re-tweeted that and in fact that car was no longer available at that price, there would be a breach of CPRs.
2. If you incorporate sponsored endorsement as part of your marketing programme, ensure you have a payment/free goods provision/entertainment policy.
3. Ensure your marketing agency or team understands these rules.
5. Reflect steps 1 and 2 in your moderation guidelines to ensure compliance with your policies.