#update: The evolution of the twitter ‘#’ disclosure rules

Published 07 October 2013 | Authored by: Alex Kelham

The authorities are having to move fast to keep up with social media, and once again Wayne Rooney's twitter activities have been scrutinised by the Advertising Standards Agency (the ASA).

In an update to my previous blog, this piece looks at the latest development in the #ad #spon twitter saga.

It seems someone has a particular grievance with Wayne Rooney, as once again a complaint was submitted to the ASA that a tweet he posted for Nike (which was received by the complainant as a re-tweet) was misleading as not clearly identifiable as a marketing communication. But this time, unlike last, the ASA ruled in favour of Nike, refusing to uphold the complain

The tweet in question this time read:

"The pitches change. The killer instinct doesn't. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1"

This is not so different in tone and presentation to Rooney's earlier tweet in relation to which the ASA upheld a complaint, ruling that in the absence of a #ad disclosure it wasn't obviously identifiable as a marketing communication. That tweet read:

"My resolution - to start the year as a champion, and finish it as a champion...#makeitcount gonike.me/makeitcount".

There would seem to be 2 key differentiating factors:

The inclusion of @NikeFootball: Including Nike's twitter handle as a clear and prominent reference to Nike appeared to persuade the ASA that consumers were unlikely to be confused as to the true nature of this tweet.

The passage of time: The ASA seems to be moving with the times, recognising how consumers digest and interpret tweets.

In its brief ruling, the ASA said that the context and overall impression of the tweet made it clear that the tweet was a marketing communication from Nike. They were satisfied of this whether the reader was a regular follower of Wayne or someone reading it when re-tweeted without knowledge that Rooney is a Nike sponsored athlete.

Although not specifically identified by the ASA in its ruling, the fact that this tweet was easily distinguishable from Rooney's personal tweets which had, shall we say, a less punchy tone, seemed relevant. Certainly, in comparison to his other tweets, this tweet was clearly promotional in style. But even when seen as a re-tweet, the ASA were satisfied that it was clear Rooney was not acting as a consumer when posting this message. The fact that the image which was posted within the tweet was very clearly a staged advertising shot was also no doubt significant.


So are #ad and #spon redundant?

In theory, they remain a useful shorthand tool to identify a tweet as a marketing communication where otherwise constrained by the 140 character limit. However, Nike argued that the prominent reference to Nike and the inclusion of the @NikeFootball handle was potentially clearer than including #ad or #spon. The ASA didn't comment on this, but given the ASA's emphasis on looking at the overall context of a tweet, and the US Federal Trade Commission's previous assertion that #ad and #spon will not necessarily be adequate to identify a tweet as a marketing communication, advertisers should probably not use #ad or #spon as a safety blanket. Factors such as the audience being targeted and the placement of the # disclosure within the tweet could lead to a conclusion that, even with their inclusion, a tweet remains misleading.

So where does this leave us? The latest Nike ruling seems to indicate that the ASA will take a more realistic view as to the question of when a tweet will be viewed as a marketing communication or not, giving consumers a little more credit than they perhaps have previously. And it is now clear that the inclusion of #ad or #spon is not essential.

In my previous blog I concluded that agencies should do what they do best and get creative, avoiding the use of cumbersome and unattractive #ad or #spon in favour of creating clear, unambiguous tweets which would leave no doubt that the tweet was a marketing communication. This conclusion remains valid... brands can now get creative with a little more confidence knowing a failure to include #ad or #spon will not be fatal. However, they must not forget the overriding factor that the tweets of their brand ambassadors must not mislead. If in doubt, including a clear # disclosure may still help but this latest ruling's emphasis on looking at the overall context of the tweet also suggests that the inclusion of #ad or #spon may not automatically save a tweet which remains, in the round, misleading.

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About the Author

Alex Kelham

Alex Kelham

Alex is the Head of Lewis Silkin’s Sport Business Group. Her work focuses on advising entities across the sports sector on a wide range of predominantly commercial and IP issues.

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