Under an obligation to repost an article you’ve written? You may need #ad – ASA rules against Platinum Gaming Ltd t/a Unibet

When should a twitter post promoting a blog be classed as an ad, meaning that it should be clearly labelled as such?

The background

A tweet posted on 27 October 2018 by racehorse trainer Nicky Henderson stated “we’re underway with the jumps and my exclusive @unibet blog is now ready to read”.  A link to the blog was included.

A complaint was made under 2.1 and 2.4 of the CAP code for failing to make it obviously identifiable that the communication was an ad.

Unibet argued that although Nicky Henderson was under an agreement as a brand ambassador (the Agreement) and had to display Unibet branding, he was under no obligation to tweet on their behalf nor did they have editorial control over his Twitter account.

Unibet explained that the Agreement required Nicky Henderson to have regular interviews with a broadcaster, which would then be transcribed into a blog, and publicised on his social media accounts.

However, the Agreement stated that Nicky Henderson was required to start a Twitter account that would be managed by Unibet on his behalf, although he would have the right to approve all tweets sent on that account.  Unibet argued that this did not reflect the reality of the Agreement, as most of the posts on his account were not related to Unibet.  Furthermore, Mr Henderson already had a social media account prior to the Agreement, which Unibet did not have any input into.  As Unibet were satisfied that Mr Henderson did not require direct assistance to fulfil his obligations, they did not facilitate him in doing so.

The ruling

The ASA upheld the complaint on the following basis.

The key tests as to whether the tweet was an ad were, firstly, whether Unibet had paid Nicky Henderson or entered a reciprocal agreement with him, and secondly, the degree of control that Unibet had over the content of the tweet. 

Under the Agreement, Nicky Henderson was required to publish his blogs on social media, therefore the ASA concluded that he had been paid by Unibet to promote their brand on social media. 

The ASA acknowledged that Unibet did not directly manage Mr Henderson’s social media accounts.  However, Nicky Henderson was specifically obliged to update his followers about his blog on social media; consequently, this was sufficient to meet the control test.

Therefore, the post was a marketing communication and should have been obviously identifiable as such.  Nicky Henderson’s twitter profile did state that he was a brand ambassador for Unibet; however this was not sufficient to differentiate between the tweets that were marketing communications and those that were not.  The tweets on Nicky Henderson’s blog, therefore, should have been identified as such, which could have been achieved by using #ad.

Why is this important?

The decision further expands the scope of social media posts that should be labelled with #ad.  And now means that journalists and bloggers, who are under a contract which requires an obligation to repost their articles, will need to label these posts with #ad to ensure they are obviously identifiable. 

Any practical tips?

If you are engaging anyone to promote a product, service or article on social media, care must be taken in checking whether it will be classed as an ad by the ASA.  If so, it will need to be clearly labelled as such.  Given the energy that the ASA (and indeed the CMA) are currently putting into pursuing influencer advertising, the message is clear - if in doubt, safest to use #ad.