By Chris Lee

Following a complaint to the Advertising Standards Agency, England footballers Wayne Rooney and Jack Wilshire have been banned from repeating their recent Twitter messages, which are believed to have been created and agreed in collaboration with the Nike marketing team. This raises the question: just what can and can’t Twitter influencers actually tweet to support their sponsors?

The ASA ruled that Rooney and Wilshire’s tweets, which included the sports label’s slogan “Make It Count” and a web link to a promotional video, were not obviously identifiable as marketing on behalf of Nike and therefore breached the UK Code of Non-broadcast Advertising, Sales, Promotion and Direct Marketing, otherwise known as the CAP Code.

According to Grant Esterhuizen of law firm Lester Aldridge, Nike defended the claim, saying that the inclusion of the Nike website address and its slogan “#makeitcount” in the players’ tweets made it clear that they were adverts.

“However, the ASA considered that it would not be obvious to all readers that the whole of each tweet was a marketing communication and that all adverts must be obviously identifiable as advertising, not just potentially identifiable as such,” Esterhuizen told NMK. “If the tweets had included explicit references to Nike itself and/or hashtags such as “#ad” or “#spon”, the ASA may not have received any complaints in respect of the nature of those messages.”

Seeking clarity

Andrew Girdwood, media innovations director at online marketing agency LBi, told NMK that the ASA is pretty clear that where there is a relationship that’s asked for a tweet then a hashtag disclaimer like #ad or #spon should be used.

“This is very much in line with the American FTC (Federal Trade Commission) rulings in the area and a strong contender for official adoption for the UK’s OFT (Office of Fair Trading) too,” Girdwood said. “The grey area, the challenge, is where there is a relationship, the brand has not asked for a tweet but there has been one anyway. In this scenario tweets (or shares on Google+) are far less likely to look like blatant marketing material because they’re going to be the celebrity’s own words. In this case as long as the relationship is clear and the influential Twitter user is expressing their own opinion then the disclaimer is not currently needed.”

Girdwood explained that the ASA reacts to user complaints and judges each case on its own merits. If there is a steady stream of complaints or concerns in response to “opinion” tweets then the guidelines may become stricter, he argued.

“Brands can still leverage their relationships with key Twitter users. The brand can still reach additional audiences, encourage sharing, associate with celebrities and take part in conversations by following the ASA’s guidelines,” Girdwood added. “In fact, brands may enjoy better quality results from a transparent and clear relationship with a celebrity rather than risk suspicion and the doubt that accidently misleading tweets can create.”

Advice for marketers

Lester Aldridge’s Esterhuizen advised that for all advertisement formats, those who wish to market their products and/or services may like to consider the following questions:

 

- Will the audience quickly recognise the content as an advertisement because of the context?

- Can the audience easily distinguish advertising from editorial content in the medium?

- Are advertisements presented in a separate space that audiences expect to contain advertising?

“If the answer to any of the questions above is ‘no’, marketers might consider taking special steps to ensure that the audience is in no doubt that the content is an advertisement,” he concluded.