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Social Media Marketing:   Legal & Commercial Best Practice
Agenda• What does the law say?• What does the law mean?• What do the regulatory codes say?• What do the regulators want to...
What does the law say?Consumer Protection from Unfair Trading Regulations 2008Applies to all marketing communicationsProhi...
What does the law mean?1. If a brand pays for a reference in any editorial content then it mustensure that there is refere...
What do the regulators say?CAP Code (enforced by the ASA)1. Marketing communications must be obviously identifiable as suc...
What do the regulators mean?What is a marketing communication for the purpose of the CAP Code?print, posters, cinema, dire...
What does it mean altogether?In very simple terms in relation to brand references in tweets and blogs:The Law says:       ...
What does the guidance say?How do you make a tweet obviously identifiable as a marketingcommunication?The ASA says it will...
What does the guidance say?IAB, ISBA, CAP and OFT together produced guidelines for compliance with thelaw and regulatory r...
Give me some examples…..                         Snickers: the campaign           Really getting into the knitting!!! Help...
Give me some examples…..                      Snickers: the ASA Ruling March 2012ASA said:●Each tweet formed part of an or...
Give me some examples…..                                     June 2012                                               Is th...
Give me some examples…..                                    Toni and Guy July 2012                                In@Tonia...
What should I do?Publisher               Type of Communication              ActionPaid Celebrity          Any tweet mentio...
What should I do?Publisher                  Type of Communication           ActionBlogger receiving free     Any blog entr...
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Social Media and Celebrity Endorsement

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Legal social media guidance for celebrity endorsement as presented by Nicola McCormick of Michael Simkins LLP 03 Oct 2012 with TIffany St James

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Transcript of "Social Media and Celebrity Endorsement"

  1. 1. Social Media Marketing: Legal & Commercial Best Practice
  2. 2. Agenda• What does the law say?• What does the law mean?• What do the regulatory codes say?• What do the regulators want to see?• What guidance is there to interpret all this?• A look at high profile examples• A fuss-free list of what to do• A test!
  3. 3. What does the law say?Consumer Protection from Unfair Trading Regulations 2008Applies to all marketing communicationsProhibits:► Using editorial content in the media to promote a product where a traderhas paid for the promotion without making it clear in the content or byimages or sounds clearly identifiable by the consumer (advertorial)►Falsely claiming or creating the impression that the trader is not actingfor purposes relating to his trade, business, craft or profession, or falselyrepresenting oneself as a consumer
  4. 4. What does the law mean?1. If a brand pays for a reference in any editorial content then it mustensure that there is reference within the content to the fact of payment ● editorial content is not defined in the legislation and at its broadest means anything that is not advertising and which provides comment, opinion or news ● it doesn’t matter whether or not the brand has written the editorial content ● payment need not be in money but can be vouchers, discounts, free products/services2. A brand must not set up a fake blog to promote its products/services3. A brand must not pose as a consumer to post reviews of its products orservices
  5. 5. What do the regulators say?CAP Code (enforced by the ASA)1. Marketing communications must be obviously identifiable as such2.3 Marketing communications must not falsely claim or imply that themarketer is acting as a consumer or for purposes outside its trade,business, craft or profession; marketing communications must make cleartheir commercial intent, if that is not obvious from the context2.4 Marketers and publishers must make clear that advertorials aremarketing communications; for example, by heading them “advertisementfeature”
  6. 6. What do the regulators mean?What is a marketing communication for the purpose of the CAP Code?print, posters, cinema, direct marketing, emails, texts, online banner or pop-upadvertisements and online video advertisements, paid-for search listings,preferential listings on price comparison sites, virals, in-game advertisements,commercial classified ads, advergames, bluetooth ads, advertisements distributedthrough web widgets, online sales promotions and prize promotions, advertorials,own websites, other non-paid-for space online under a brand’s control[NB may control a tweet if not a whole Twitter account and a blog entry if not thewhole blog]
  7. 7. What does it mean altogether?In very simple terms in relation to brand references in tweets and blogs:The Law says: if you ‘pay’ for the reference - make it clearThe Regulators say: if you control the reference editorially - make it clearBoth say: don’t pose as a consumer
  8. 8. What does the guidance say?How do you make a tweet obviously identifiable as a marketingcommunication?The ASA says it will assess each tweet on its own merits, but is likely totake into account factors such as:• the time-lapse between any teaser tweets and any advertising reveal• the understanding of the audience and• the context in which the tweets appearbefore they decide whether or not the tweets are sufficiently recognisableas an ad or whether the tweets need to do more to convey their advertisingintent
  9. 9. What does the guidance say?IAB, ISBA, CAP and OFT together produced guidelines for compliance with thelaw and regulatory regime. The guidance states that where payment is made forthe making of a marketing communication:►whether payment is made in cash or free products this must be disclosed►the marketer must comply with platform providers T&Cs►the marketing communication must comply with CAP code as to contentHow do you disclose the fact of payment?In a tweet By including #ad or #sponIn a blog In words within the relevant post By adding the nofollow attribute to any hyperlink
  10. 10. Give me some examples….. Snickers: the campaign Really getting into the knitting!!! Helps me relax after high pressure world of the Premiership Can’t wait 2 get home from training and finish that cardigan ▲ Just popping out 2 get more wool!!!onehour ▼ Cardy finished. Now 4 the matching mittens!!! You’re not you when you’re hungry @snickersUK #hungry #spon
  11. 11. Give me some examples….. Snickers: the ASA Ruling March 2012ASA said:●Each tweet formed part of an orchestrated ad campaign●The first 4 tweets were teasers, made no reference to Snickers & were posted in quicksuccession●The fifth tweet showed the celebrity, the product, the campaign strapline and #sponwhich in combination made it clear the tweets were all marketing communications
  12. 12. Give me some examples….. June 2012 Is this obviously identifiable as a marketing communication? NoASA said:●Nike reference not prominent and could be missed●Not all twitter users would be aware of Nike’s #makeitcount campaign● Not all twitter users would be aware of Nike’s sponsorship of the team●Did not include #ad
  13. 13. Give me some examples….. Toni and Guy July 2012 In@Toniandguylside having such a wonderful time defo got my hair back to good condition 10% off call today and quote #gemma x 10% off @Toniandguylside I have the most amazeballs hair colour and condition best salon ever call and say #gemma for discount xxASA said:In the absence of an identifier such as #ad they were not obviously identifiableas marketing communications
  14. 14. What should I do?Publisher Type of Communication ActionPaid Celebrity Any tweet mentioning the brand Include #ad Re-tweeting any other person’s Include #ad comment about the brand Re-tweeting brand’s own tweets Include #ad Reference to brand in own blog ● Must identify status as paid brand ambassador ● Any link to have nofollow attribution Comment posted on any forum Must identify status as paid brand ambassadorNB: where brand has editorial control over what celebrity says the content mustalso comply with the entirety of the CAP code
  15. 15. What should I do?Publisher Type of Communication ActionBlogger receiving free Any blog entry mentioning the Blogger must state that freegoods or payment brand (edited or not) goods received within blog post Any hypertext link to a brand Include nofollow attribute websiteTwitterer receiving free Any tweet mentioning the Include #adgoods or payment brand Any re-tweet mentioning the Include #ad brandBlogger making Any No action requiredunsolicited comments
  16. 16. Test
  17. 17. Test
  18. 18. Thank you
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