Just (Don’t) Do It: Lessons From Nike’s Tweet Troubles

The rise of Twitter has brought with it both a new form of celebrity voyeurism and, more importantly, a host of fresh opportunities and challenges for marketers, law makers, regulators and legislators alike. 

Footballers Wayne Rooney and Jack Wilshere found themselves in something of an offside position following two Twitter posts promoting a new campaign from Nike in January 2012. The tweets, detailing their resolutions for 2012, both ended with ‘#makeitcount gonike.me/makeitcount’. Nike contended that the tweets could be objectively viewed as marketing communications because of the presence of the Nike URL in both of the tweets and the hashtagged Nike campaign strapline.

Nevertheless, the Advertising Standards Agency (ASA) ruled that the tweets were in violation of Clause 2 of the The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). The ASA cited that it was neither explicit nor easily identifiable that these tweets were marketing communications for Nike. Moreover, the campaign had launched around the same time as the tweets were posted, thus Nike’s claim that the slogan would be easily recognisable to consumers was deemed unfounded. The decision ruled that the tweets be deleted, and Nike has subsequently been warned over their future practice.

Why is the decision important?

The significance of this case lies in the fact that this marks the first time the ASA has upheld a complaint and taken action against a Twitter based campaign. To avoid this kind of situation, the ASA proposes  the usage of #ad (or something to that effect) to be absolutely clear that a Tweet is intended as an advertisement. For example, a recent complaint to the ASA regarding a Snickers Twitter campaign was not upheld as a result of the communication being labelled by #spon, and consequently ‘obviously identifiable’ as a promotion.

Online marketing represents a well of potential, particularly with the pervasiveness of social media. Twitter especially is an excellent platform on which to promote and advertise. Still, it can be easy to forget that tweets still must adhere to the even the most basic regulations laid down about marketing communications, namely that ‘marketing communications must be obviously identifiable as such’.

It is difficult to ignore the irony in that having their case investigated by the ASA, the campaign has gathered decidedly more attention and notoriety than if they had abided by the regulations. Yet, even though in this case the ASA adopted a ‘relatively relaxed’ (ASA spokesman Matt Wilson) approach with regards to the ruling and subsequent action, that does not mean to say that in the near future the ASA will be quite so lenient towards Twitter violations.

Things to consider

The Committee of Advertising Practice (CAP) put forward these three questions to ask if in doubt of breaching advertising regulations:

• Will the audience quickly recognise the content as an advertisement because of the context (for example, because it appears on the advertiser’s own website)?

• Can the audience easily distinguish advertising from editorial content in the medium (for example, because they recognise differences in style)?

• Are advertisements presented in a separate space that audiences expect to contain advertising (for example in breaks in TV programmes or in a section headed “sponsored links” on a website)

If you’re putting an advert together and the response to any of these questions is a no, then you should reconsider your content to confirm it is evidently an advert.

If you’re still insecure in your ad’s compliance, contact one of our commercial lawyers today on 020 7234 0200 or e-mail contact@waterfront.law. And of course, be sure to follow us on Twitter!

Many thanks to our work experience colleague, David Brown, for helping to prepare this blog post. We wish him all the best with his studies and beyond!