The recent ASA ruling upheld against Unibet serves as a reminder to businesses that social media posts by their brand ambassadors may be considered by the Advertising Standards Agency (“ASA”) to be adverts. Where this is the case the social media posts need to comply with the CAP Code and advertising law.
A tweet from the official Twitter account of racecourse trainer Nicky Henderson linked to his “exclusive @unibet blog”. Unibet and Mr Henderson had entered into an agreement whereby Mr Henderson acted as a brand ambassador for Unibet, including a requirement that he published a blog on social media, and that he periodically updated his social media accounts.
The tests as to whether the ASA considers a social media post to be an advert are:
- whether there has been payment from the business to the influencer; and
- whether the business exercises control over the post of the influencer.
The ASA found that both of the above tests were met. The reciprocal agreement involved payment to Mr Henderson. Unibet required Mr Henderson to post about his blog on social media so it had control over the content of tweets relating to the blog. Accordingly, the tweet was a marketing communication and so, in order to comply with the CAP Code, should have been obviously identifiable as such.
The ASA told Unibet and Mr Henderson that the ad must not appear again in its current form and future marketing communications must be obviously identifiable as such, for example by using an identifier such as “#ad”.
Wider considerations for businesses
Businesses should take note of the wide interpretation of ‘payment’ and ‘control’ by the ASA which mean that a wide range of social media posts are likely to be considered by the ASA to be adverts.
The ruling may not be a surprise to those familiar with the joint guidance from the Competition and Markets Authority (“CMA”) and the Committee of Advertising Practice (“CAP”) ‘An Influencer’s Guide to making clear that ads are ads’ published earlier this Autumn. The joint guidance sets out that for the purposes of the CAP Code:
- there does not need to be money for there to be ‘payment’ – giving influencers products, gifts, services etc. for free would likely qualify as payment. Equally, any sort of commercial relationship between the business and influencer will likely count as payment;
- ‘control’ includes businesses telling influencers what hashtag to use, requiring influencers to post a specific number of times and/or reserving the right to approve the content before it is posted.
Businesses should be aware that where there is payment but no control, consumer protection legislation still applies and the CMA expects influencers to disclose when they have received any form of monetary payment, incentive or freebie.
Failure to comply with the CAP Code can resulting in an ASA ruling upheld against a business, such as the ruling against Unibet, which are often picked up by the press and can lead to negative publicity. Breach of consumer protection legislation may give consumers certain remedies and can be a criminal offence.
Steps to take
Both businesses and influencers are responsible for making sure that adverts posted by influencers are clearly identifiable as adverts and that wider advertising laws are complied with. Accordingly, businesses and influencers should take steps to ensure they understand the relevant rules and laws and are complying with them. Businesses may find it useful to give guidance to influencers they work with to help with compliance, ensure adequate terms and conditions are in place with influencers and monitor influencers’ posts.