Paid promotion in social media guidance
As you may have already seen in NMA, today the IAB and ISBA jointly released guidelines on the payment for editorial content to specifically promote a brand, product or service within social media, which have been developed in consultation with both the Office of Fair Trading and the ASA’s Committee for Advertising Practice.
This is a subject pretty close to our hearts, as time and time again we’ve seen brands unwittingly break the law within social media, often based on bad advice given to them by their incumbent agencies. As a result, I’ve been working closely with Nick Stringer, the IAB’s Director of Regulatory Affairs, to author these guidelines over the last few months. We felt it was time to step-up and develop clear guidelines, along with practical examples, that help brands stay legal.
The IAB have produced a short video of me explaining the reasons behind the guidelines, introducing the guidelines themselves and giving a couple of examples of how they apply in practice:
We hope that brands find these guidelines useful and that they help uphold the integrity of social media marketing in the UK and Europe as a whole (UK law in this area is taken word for word from the European Union’s Unfair Commercial Practices Directive, which is also in force in the rest of the EU, so brands would be well advised to follow these guidelines throughout Europe).
You can download a PDF version of the guidelines and the Q&A from the IAB’s site and they’re shown in full below:
Introduction
This document outlines guidelines in relation to the payment for editorial content to specifically promote a brand, product, or service within a social media environment.The objective is to set out clear and practical steps to help brand owners and marketing practitioners comply with the Consumer Protection from Unfair Trading Regulations 2008 and to therefore provide transparency to consumers engaging with and sharing content in a social media environment.
What is the current law?
The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) specifically prohibits “using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).” The CPRs also prohibits: “Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.”Therefore, under the CPRs, using editorial content in the media to promote a brand, product, or service where the trader has paid for the promotion, without making that clear in the content or by images or sound is prohibited. It is also prohibited to mislead consumers by act or omission (for example in relation to any endorsement of the product), where this is likely to have an impact on the consumer’s decision making about the brand, product, or service. These rules apply to any trader involved in the promotion, sale or supply of products to or from consumers. The primary legal responsibility for complying with the law lies jointly with the brand owner and any agencies involved with the promotion.
In December 2010, the Office of Fair Trading (OFT) took enforcement action under the CPRs against Handpicked Media, a commercial blogging network, and secured undertakings that promotional comments which have been paid for must be clearly identified. The OFT also have a guide on the CPRs.
Guidelines
The IAB and ISBA recommend that brand owners and marketing practitioners follow three steps when a payment has been made in order for someone to editorially promote a brand, product or service within social media:
- Ensure that the author or publisher of the message discloses that payment has been made. This will ensure that it is clear to consumers that it is a marketing communication. See below examples.
- Ensure that authors adhere to the appropriate terms and conditions of the social media platform or website that they are using in relation to promoting a product or service. This includes search engines likely to index the content.
- Ensure that the content of the ‘marketing communication’ adheres to the principles of the CAP Code.
Example A: Video Placement
The owner or publisher of a blog or website is paid by a brand owner or marketing practitioner to promote a brand, product or service by publishing a video produced by the brand owner on their site. The brand owner or marketing practitioner should ensure that the disclosure is within the body of the blog post or page that contains the video to ensure it is clear and transparent to a viewer. If hypertext links to a website commissioned by the brand owner or marketing practitioner are included alongside the video in the blog post or page, these should have the ‘nofollow’ attribute.Notes: As some consumers may read the content outside of the blog in question (via an RSS reader or if the content is syndicated elsewhere), it’s essential the disclosure happens within the body of the blog post itself, and not elsewhere. Google’s webmaster guidelines explicitly state that paid-for links should have the ‘nofollow’ attribute, and brands found breaking these guidelines are routinely de-indexed by Google.
Example B: Blog Content
The author or publisher of a blog is paid by a brand owner or marketing practitioner to promote its brand, product or service by including mention of the brand, product or service, or of a marketing campaign in editorial within a blog post. The brand-owner or marketing practitioner should ensure that the author or publisher makes the disclosure within the body of the blog post itself to ensure it is clear and transparent to a reader. If hypertext links to a website commissioned by the brand owner or marketing practitioner are included in the blog post, these should have the ‘nofollow’ attribute.Notes: As some consumers may read the content outside of the blog in question (via an RSS reader or if the content is syndicated elsewhere), it’s essential the disclosure happens within the body of the blog post itself, and not elsewhere. Google’s webmaster guidelines explicitly state that paid-for links should have the ‘nofollow’ attribute, and brands found breaking these guidelines are routinely de-indexed by Google.
Example C: Video Blog
A video-blogger is paid by a brand owner or marketing practitioner to promote a product in an editorial video. The brand should ensure that the video discloses the payment within the content of the video itself to ensure it is clear and transparent to the user.Notes: As some consumers may view the content outside of the video sharing platform the video is hosted on (via RSS or if the content is embedded elsewhere), it’s essential the disclosure happens within the content of the video itself.
Example D: Twitter
A Twitter user is paid by a brand owner or marketing practitioner specifically to use Twitter to promote a brand, product or service. The brand owner or marketing practitioner should ensure that the Twitter user discloses the payment by including ‘#ad’ within their tweet.Notes: As tweets are limited to 140 characters, the use of the ‘#ad’ hashtag allows maximum room for the message itself, but also makes clear to consumers that the message has been paid for.
Example E: Forums
A brand owner or marketing practitioner, wishing to promote a brand, product or service to the members of a particular internet forum, should follow that forum’s community guidelines, moderation policy or similar. Where these are not available, or do not detail how brand representatives should conduct themselves, brand owners or marketing practitioners should approach the administrators of the forum directly or via their agencies to seek permission to post the content themselves (making sure to clearly identify themselves as representatives of the brand) or come to a commercial arrangement with the owners of the forum (for example having a sponsored area of the forum).Notes: Brand owners or marketing practitioners should not consider asking (whether or not payment is involved) third-parties to promote brands, products or services within internet forums, bulletin boards or news groups without permission from the forums’ administrators, even with disclosure, as doing so would contravene generally accepted etiquette and is likely to generate negative sentiment amongst the forums’ members. Brand owners or marketing practitioners should of course feel free to reply to comments in a non-promotional way on forums concerning their brands, providing they clearly disclose that they are affiliated with the brand in question.
Example F: Facebook
A brand owner or marketing practitioner should not consider paying individuals to promote brands, products or services on the individuals’ pages or profiles on Facebook, even with disclosure, as doing so would contravene Facebook’s terms of service.Notes: In April 2011 Facebook banned Ad.ly, a service that was paying celebrities to endorse products in their Facebook page updates, as it violated section 3.1 of the site’s terms of service which states “You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook”.
Q&A
Q. Why are the IAB and ISBA publishing these guidelines?
A. The guidelines – developed by the IAB’s Social Media Council – aim to provide brand owners and marketing practitioners with clear guidance about the paid promotion of brands, services or products via ‘editorial content’ in social media (e.g. in a blog). It specifically offers some practical steps for brand owners and marketing practitioners to follow (e.g. the use of ‘#ad’ in the content of a promoted tweet on Twitter). The guidelines are supported by ISBA – the Voice of British Advertisers.Q. Why are the IAB and ISBA publishing these guidelines now and why are they important?
A. Several recent high profile breaches of the law make this guidance essential to uphold the integrity of a growing social media environment. The IAB’s and ISBA’s goal is to provide brand owners and marketing practitioners with clear guidance to help comply with the law.Q. Why is this necessary? Isn’t there a law?
A. The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) – enforced by the Office of Fair Trading (OFT) – specifically prohibit “using editorial content in the media to promote a product where a trader has paid for the promotion without making it clear in the content or by images or sounds clearly identifiable by the consumer.” However, in a fast changing environment such as social media, it is important to provide brand owners and marketing practitioners with practical and easy-to-implement ways to help comply with the law.Q. Hasn’t an ‘#ad’ in Twitter already been recommended by the Federal Trade Commission (FTC) in the USA?
A. The FTC revised its Endorsement Guidelines in June 2010. However, it did not prescribe a particular disclosure notice on Twitter (or any other social media platform) but suggested that hashtags could be a good way to be transparent in a 140 character medium. The IAB and ISBA agree and suggest that ‘#ad’ be the one that brand owners and marketing practitioners encourage so that there is consistency and recognition for consumers.Q. How will the guidelines be enforced? What happens if they are not followed?
A. It is important to recognise that these are only guidelines and will evolve as the social media environment changes. It is not the IAB’s nor ISBA’s role to enforce the guidelines or the law. The CPRs are enforced by the OFT and these are suggested practical ways to comply. However, the guidelines will need to be regularly reviewed to ensure they maintain pace with technology and evolving commercial practices.Q. Doesn’t the CAP Code, policed by the Advertising Standards Authority (ASA), cover this already?
A. No. Two criteria are required for this type of communication to fall under the CAP Code:
- Editorial control. The brand owner / marketing practitioner must have editorial control over the marketing communication. For example: if a marketer retweets a user’s comment about its product it has control over that message.
- Payment. There must be a commercial arrangement in place. For example: a brand owner / marketing practitioner may have a commercial contract with a celebrity to promote its product.
It is not enough for a brand owner / marketing practitioner to pay someone to promote a product in social media ‘editorial content’ for the marketing communication to fall within the remit of the CAP Code. However, if the brand owner / marketing practitioner supplies that person with specific content then the Code will apply. The CPRs apply as soon as payment is involved. For further information specifically on this matter please contact the CAP Policy Team.
However, the guidelines do recommend that the ‘marketing communication’ content follows the principles of the CAP Code.
Q. What about this type of activity on a publisher’s own website? Is this covered?
A. A publisher has editorial control over the content and activity on its own website(s). This would therefore be covered by the CAP Code.Q. What about ‘blogger outreach’?
A. The CPRs only cover scenarios where a brand owner or marketing practitioner has paid for a promotion. If a blogger writes about a brand, product or service as a result of anything other than payment (eg through attending an event or being loaned a product to review), then no disclosure is required under UK law (and neither are ‘nofollow’ attributes on links in the blogger’s post).Q. Who supports the guidelines?
A. The guidelines have been developed by the IAB’s Social Media Council and are supported by ISBA, the Voice of British Advertisers. In addition to ISBA, the IAB has also held discussions with the OFT and the Committee for Advertising Practice (CAP) Secretariat and their help and feedback has been invaluable. The IAB and ISBA acknowledge that there are many different stakeholders in this area and are happy and willing to collaborate with those that wish to evolve these guidelines as the market changes. In doing so we will offer brand owners and marketing practitioners the best possible practical steps to take and provide consumers with the transparency they expect.Q. Won’t these guidelines be out of date very quickly?
A. The guiding principles should be applied. However they include practical examples of good practice (for today’s market) and the practice of social media moves very quickly. It is therefore important that they evolve with the market to ensure they remain transparent. The IAB Social Media Council will work to ensure that this happens.Q. Where can I find out more information or get further advice?
A. The IAB can provide further details and / or advice on the practical guidance. However, this is not a substitute for robust legal advice. An OFT guide on the CPRs is available.