On 7 November 2018, the Advertising Standards Authority (“ASA”) published a ruling in relation to a twitter ad posted from the official Twitter account of racecourse trainer Nicky Henderson. The ASA found that the ad breached the UK Code of Non-Broadcast Advertising (the “CAP Code”).
The tweet, posted on 27 October 2018, stated “We’re underway with the jumps and my exclusive @unibet blog is now ready to read…”. A link to the blog was included.
The complainant alleged that Unibet had editorial control over the tweet and challenged whether it breached rules 2.1 and 2.4 of the CAP Code, which state, respectively, that marketing communications must be obviously identifiable as such; and that marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature".
In response, Platinum Gaming Ltd t/a Unibet (“Unibet”) argued that the tweet was not a marketing communication because it did not (i) set up Mr Henderson’s Twitter account; (ii) have any editorial control over it (i.e. individuals at Unibet did not post Tweets on his behalf); and (iii) require him to tweet on Unibet’s behalf. Unibet pointed out that these practical arrangements should be considered by the ASA despite the generic brand ambassador contract with Mr Henderson stating that, in exchange for payment, Unibet would manage his social media activity, with his assistance.
The ASA’s ruling
The ASA concluded that the tweet was a marketing communication as opposed to editorial content because Mr Henderson was being paid by Unibet under their reciprocal arrangement and Unibet had control over the content of his tweets by making him post about his blog on social media.
The ASA also noted that although Mr Henderson’s Twitter profile stated that he was a Unibet Ambassador, the tweet was not obviously identifiable as a marketing communication because it could not be distinguished from his other tweets that were not, but which tagged or referenced Unibet.
Consequently, the ASA held the ad breached rules 2.1 and 2.4 (Recognition of marketing communications) of the CAP Code.
The full ruling can be found here.
This case is a useful reminder for gambling operators and social media influencers that post social media ads on their behalf, that such ads must be obviously identifiable as such, for example by using an identifier such as “#ad”, so as not to mislead their audience.
More generally, it is worthwhile to note that the ASA will hold both brand owners and influencers to account and that the notion of “control” over social media posts by brand owners falls to be determined on a case by case basis.