Preparing for significant regulation changes in social media

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My first session on the IAB Social Media Council had us debating the upcoming regulation changes which will see the ASA’s remit extended to cover marketing on websites from 1st March 2011.

So what? Well the Advertising Standards Authority is “the UK’s independent regulator of advertising across all media” but until now this did not include websites (and for websites also read social networks, blogs etc). This new regulation means that marketing communications on companies’ own websites and in other third party space under their control, such as Facebook and Twitter, will have to adhere to the “non-broadcast advertising rules” as set out in the CAP Code.

The aim is to drive companies to ensure marketing messages on their websites are legal, decent, honest and truthful. This should go without saying but think of how celebs are used in social media marketing – when they are speaking about a product are they doing so because they are paid? What about the blog you read extolling a product – was that review paid for? Currently this is unclear but the ASA aims to remove that uncertainty.

How? Well, the ASA does not set rules, just guidance so it is currently unclear exactly what will fall foul of the regulations.

On the Council we are looking to lead the way with self regulation and I am interested in your views of how this should be done?

  • Should sponsored tweets feature a hashtag such as #ad or #spon
  • What if a paid brand advocate happens to tweet about the brand, is this ‘paid’
  • What constitutes being paid? Is a blogger who is given product to review ‘paid’?

At FreshNetworks we have always advocated responsible social media practice and support the ASA’s work to clear up this grey area.

I will be updating you as new information comes out and would love your thoughts on this as they will help drive the self regulation response.

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20 Comments

  1. Benjamin Ellis:

    It will be interesting times!

    Don’t forget that the UK (and a number of other countries) already have legislation that pretty directly covers this area - that is a much bigger stick that the ASA’s guidance, and has already set some pretty firm boundardies

    With regard to your three points:
    1. It is probably worth distinguishing between _a_ sponsored tweet, and a sponsored (ie funded) twitter account. For the former, there needs to be some disclosure - to protect the sponsor, if nothing else. For the later, I would suspect that a disclosure in the twitter bio would be sufficient - I’m not sure twitter being filled with a sea of #ad tags is a pleasant thought, but there again, maybe twitter being filled with a sea of ads isn’t a pleasant thought, fullstop.

    2. If a paid advocate is writing about the brand. that is paid promotion. They are suppling information that may be biased by their relationship with the brand, and they are required to disclose that.

    3. Payment is payment. Receiving goods, to my understanding at least, is payment in kind,so it’s still payment and the same rules apply. See the recent notice from OFT regarding a required undertaking: http://www.oft.gov.uk/news-and-updates/press/2010/134-10

    “Online promotional activity, just like any other promotional activity, must clearly identify when promotions and editorial comment have been paid for, so that consumers are not misled.”

  2. Gemma Went:

    Interesting indeed. Glad to see this is gaining momentum at the IAB. My response to the three points:

    1. Yes, I would always advise on full disclosure within tweets and a uniform way of doing so would be idea. However, as Benjamin points out, a sea of #ad tags is far from ideal. Personally I’d filter these out of my streams. But if that becomes commonplace, it begs the question of having sponsored tweets in the first place.

    2. Any content on a brand from a paid advocate is paid promotion and should be disclosed.

    3. Thanks for sharing the link to OFT Benjamin, I hadn’t seen that. And yes, again, full disclosure required.

    I look forward to your updates.

  3. Craig McGill:

    Here’s a poser from this: what about US companies who get UK people to do stuff?

    For example, say you or I were discovered to have paid for blogs but not disclosed it, ASA would come down on us, yeah? But what if it was a US or European company behind it? Would they be safe to break the law as they see fit or would the punishment be applied to the blogger instead of the company?

  4. Daniel Copley:

    Hi Mark,

    Good blog post, I’d be interested to read your thoughts on a couple of practical case studies.

    And now I’m going to clumsily wade into the debate…

    One of the difficulties is going to be differentiating promotional activity to editorial content.

    For instance, just about every highstreet retailer holds press days twice a year. The press days are usually filled up with journalists, fashion insiders, stylists and, lately, bloggers. Depending on the press day, you’ll receive free booze, free trendy food and a free goody bag (containing a press pack and a little gift).

    Name a high street brand, suffix it with ‘press day’ and bang it into a blog search. Mucho buzz.

    Is this payment?

  5. Kate Spiers:

    I’m glad the debate is getting started, and thanks for sharing it.

    My view: I’m inclined to return to the original objectives of the CAP code, which will (in the words of the ASA) “apply in full to marketing communications online, including the rules relating to misleading advertising, social responsibility and the protection of children.”

    It would be easy for us to get tied up in knots on misleading advertising - which must be addressed and building a framework for doing that will be a huge but necessary challenge - but also to remember the wider remit of social responsibility and protection of children. These other objectives are equally important to our industry and require serious consideration. So on that basis - let’s all maintain focus.

    But that’s not what you asked :) So in response to your request for views, here are my thoughts:

    1. Hashtags are unlikely to work - as Gemma points out, they may well be filtered out anyway - and will doubtless cause frustration to users. I agree with Benjamin that disclosure in Twitter bios is preferable, but it will be interesting to see how Twitter clients and apps respond to the need for disclosure. Will they enable it by building some kind of standard indicator into the interface (or API) for this purpose? Already there on some, but will that become the de facto way of doing it?. Can the ASA influence that?

    2 and 3: Yes, paid is paid, no matter what the payment - it’s all about the intention. But then we come back to a debate on payment vs incentive (for example, RTing or Liking for a chance to win something). Or ‘pay with a tweet’ - is that essentially achieving the same thing? (user amplifies in order to gain reward).

    It’s here I think we need to be careful. The debate needs to happen and I applaud the IAB Council for making inroads. But it needs to be tempered with a healthy dose of pragmatism and all eyes firmly focussed on the wider objectives. There, I think the IAB Council, along with the support of the industry can make a massive difference.

    Keep us posted, and tell us how we can help.

  6. Mark Jennings:

    Ben - In terms of what constitutes payment: your view is black and white. Look at newspapers and magazines though - they are mostly made up of product-based promotional copy these days without any mention of sponsorship. As Dan says “the press days are usually filled up with journalists, fashion insiders, stylists and, lately, bloggers … you’ll receive free booze, free trendy food and a free goody bag”.

    Craig – Your question “What about US companies who get UK people to do stuff?” is a great one. It could be ASA/OFT or in the states the FTC who were first to provide guidance on this for US businesses with their Revised Endorsement Guide

    I think it will come down to a case by case example until good practice is established.

    Dan – A good example is Kim Kardashian’s tweet here With almost 6 million followers her endorsement comes at a price. On the IAB Council is the chap who wrote that tweet. I can’t say how much she was paid but you can guess it was a pretty penny.

    Your point about press days was absolutely at the heart of the debate.

    Kate – Great reminder of the wider responsibility we all play when communicating. In terms of the responsibility of the social network to create a standard indicator - at the IAB Council we did discuss whether this was the best approach and agreed that guidance should be sought from all parties.

    Thanks also for your views on the three questions I posed. I have collated some of the replies:

    Should sponsored tweets feature a hashtag such as #ad or #spon
    • Important to distinguish between a sponsored tweet, and a sponsored (ie funded) twitter account.
    • A sea of #ad tags is far from ideal … I’d filter these out of my streams.
    • It will be interesting to see how Twitter clients and apps respond to the need for disclosure.

    What if a paid brand advocate happens to tweet about the brand, is this ‘paid’?
    • If a paid advocate is writing about the brand. that is paid promotion
    • Any content on a brand from a paid advocate is paid promotion and should be disclosed.
    • It’s all about the intention.
    • We come back to a debate on payment vs incentive (for example, RTing or Liking for a chance to win something). Or ‘pay with a tweet’ – is that essentially achieving the same thing? (user amplifies in order to gain reward).

    What constitutes being paid? Is a blogger who is given product to review ‘paid’?
    • Payment is payment.

  7. Craig McGill:

    Thanks for the reply Mark. I suppose the other issue here is what if you have someone - celeb or otherwise - say in a tweet “Just had a lovely Whyte & Mackay whisky” and they weren’t doing as a sponsored/paid-for tweet, just matter-of-fact telling people what they enjoyed. It’s going to look like an endorsement and if it looks like an endoresement…

    The only way I can see this working is PCC-style. Oh, wait, hang on…

  8. Craig McGill:

    whoops, sorry about the tyop there.

  9. Mark Jennings:

    Thanks Craig. I think your point sums up why it is important to distinguish paid opinions from opinions - so the good, honest ‘I just love x brand’ messages are not viewed cynically.

  10. Ali Syme:

    As with most forms of regulation, the “authorities” tend to get there after the industry has set its own standards. 100% agree that users need to know what’s a promotion and what’s not. I’d say a hashtag wasn’t enough - because you could use them and appear to have some kind of massive budget which is a marketing tac. in itself. I’d say the API can support this - just another field to add to a Tweet and the application developers can choose how to display this tweet as different to others. Obviously Twitter is looking to monetize and they will no doubt set their own standards centrally.

    To cover advocates where it’s not clear about their incentive for posting a tweet or review, I’d say there’s an obligation for “agents” to inform users that they are speaking are stakeholders in a product. E.g. I can write a review because someone pays me, but no one will read it - I’m not an expert. However if Mr Digital Camera posts on his blog that one camera is better than another camera and he says this because he’s getting paid - then I’d at least like to know that he’s affiliated with a company so I can judge for myself whether to listen to him.

    So if I ever get paid for a blog or tweet I’ll be sure to do some kind of (£) against it so you know that I’m doing it for my own selfish reasons.

  11. Ruth Wagner:

    Great article and given the OFT backlash on disclosure reminds us that Social Media Disclosure & Transparency is a LIVE hot topic.

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    Social Media poses a real challenge in short form media (Tweets, Facebook status updates, or Foursquare check-ins). Here at CMP.LY we have been on the forefront of these issues. We have developed an emerging standard that makes compliance and disclosure straightforward.

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    Ruth Wagner
    VP Corp Sales & Compliance
    CMP.LY

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  13. son projeler:

    it’s going to look like an endorsement and if it looks like an endoresement…

  14. proje haberleri:

    what if it was a US or European company behind it? Would they be safe to break the law as they see fit or would the punishment be applied to the blogger instead of the company?

  15. emlak editor:

    To cover advocates where it’s not clear about their incentive for posting a tweet or review, I’d say there’s an obligation for “agents” to inform users that they are speaking are stakeholders in a product.

  16. proje bak:

    it’s going to look like an endorsement and if it looks like an endoresement…

  17. proje incele:

    Social Media poses a real challenge in short form media (Tweets, Facebook status updates, or Foursquare check-ins). Here at CMP.LY we have been on the forefront of these issues. We have developed an emerging standard that makes compliance and disclosure straightforward.

  18. emlaktanevar:

    To cover advocates where it’s not clear about their incentive for posting a tweet or review, I’d say there’s an obligation for “agents” to inform users that they are speaking are stakeholders in a product. E.g. I can write a review because someone pays me, but no one will read it

  19. proje firsatlari:

    I’d say there’s an obligation for “agents” to inform users that they are speaking are stakeholders in a product. E.g. I can write a review because someone pays me, but no one will read it

  20. emlak haberci:

    E.g. I can write a review because someone pays me, but no one will read it