Rules for social media marketing: the importance of #Ad

Who are the ASA and what do they do?

There are a handful of regulatory bodies and organisations involved in advertising and marketing regulation in the UK, arguably the most active of which is the ASA. The ASA are an independent regulatory body overseeing all advertising across the UK and are self-regulated. In other words, the work the ASA do is funded by advertisers themselves through a voluntary levy and is completely independent from the government. ASA claim that this self-regulating, industry-funded system is ‘powered and driven by a sense of corporate social responsibility amongst the advertising industry’.

Working in and around the scope of Ofcom and the Competition and Markets Authority (‘CMA’) regulation, the ASA works to monitor ads across all platforms and respond to complaints. If the ASA finds that an ad breaches its codes of practice (which are themselves based on UK law or regulation), it may publish this finding and ask the advertiser to remove the ad. In more serious cases or for persistent offenders, the ASA may take steps to generate adverse publicity, issue bulletins requesting members withhold services from offenders. In the most serious cases the ASA may refer cases to Trading Standards or the CMA to take legal action against offenders, which may include injunctions and fines.

These rules and regulations mostly flow from the:

• Consumer Protection from Unfair Trading Regulations 2008 (CPRs):
  • Prohibits misleading actions and omissions.
  • Bans aggressive commercial practices.
• CAP Code:
  • Covers non-broadcast marketing communications.
  • Ensures advertising is legal, decent, honest, and truthful.
• Broadcast Committee of Advertising Practice (BCAP) Code:
  • Governs broadcast advertising standards.

Whilst these may seem overwhelming at first glance, there are a number of key rules to pay attention to.

So - what are the key social media marketing rules?

The rules and regulations that apply will vary depending on the platform being used to advertise and on the nature of the ad. For example, the ASA has published specific guidance for influencer marketing to address the nuances of social media platforms and the nature of sponsored content. There are also specific rules for health and environmental claims, as well as children in advertising. Below we set out the key points to take away for each.

1. Transparency in Social Media and Influencer Marketing

Over the last decade in particular, platforms such as TikTok and Instagram have become a highly effective stream of advertising and can be utilised in several ways. From gifting products to hosting virtual competitions for prizes, the reach and engagement achievable through social media – with approximately 4.9 billion users across all platforms – makes it an invaluable method of advertising. However, with each type of advertisement strategy comes a number of regulations to be mindful of. There are some overarching principles that can be applied to all types of post.

Perhaps the most important principle is transparency. Influencers must disclose all paid partnerships and must not in any way hide or omit their relationship with the brand or product they are posting about. This requirement is quite commonly covered with the inclusion of ‘#ad’, ‘#sponsored’ or ‘#gifted’ to signify this relationship. As mentioned at the beginning of this article, the ASA’s request that Grace Beverley remove her post advertising her brand, TALA’s, recent product is an example of their enforcement of this principle. Whilst Ms Beverley claimed her Instagram following would all know that she was the founder of the brand, the ASA contended that Ms Beverley had not made this clear enough in the video she posted and that there was a lack of transparency with the viewers of the video for this reason. Transparency goes hand in hand with another key principle – authenticity. All claims made in social media posts must be genuine and verifiable and must not involve deceptive practices such as fake reviews. The ASA have posted a substantial amount of guidance on these issues, all of which is linked in their article here.

Advertisers and content creators must also be careful when conducting competitions or prize draws as these may constitute an illegal lottery or may otherwise breach the rules enforced by the ASA or policies imposed by the social platform. The ASA notes that the key pointers to remember are:

• Include all significant conditions in the initial competition ad (rule 8.17 CAP code). For example, if the user must follow the competition host’s account for their entry to be valid.
• Provide a clear link to the full terms and conditions. Rule 8.28 sets out what should be included in these.
• Do not amend or change these terms and conditions during the course of the promotion (rule 8.23). This is only permitted in exceptional circumstances.
• Be fair and deal honourably with participants.
• Make sure you have the right resources to run the process properly. For example, where the competition requires participants to like, comment and follow, make sure you have the processes to fairly check these requirements for the number of participants engaged. See the ASA ruling on Molly-Mae Hague’s promotion here.
• You must select prize draw winners at random (rule 8.24).
• Of course, make sure the prize is fully awarded, or a reasonable equivalent if necessary. You must be able to demonstrate that you have done this. There should be no cost to the participant for claiming the prize (rule 8.21.1).

There are a number of other key regulations to be aware of when advertising on social media – some of these are outlined briefly below.

2. Misleading Advertising

Advertisers must also be familiar with the rules on misleading advertising. This includes being careful not to make false claims about a product’s capabilities or any factor that may reasonably influence the decision of the consumer. For example, advertisers must be careful not to display incorrect customer ratings. In the case of Rental Republic, it was found that the claims of high ratings on Trustpilot, Facebook and HomeAway were not accurate and therefore created a misleading impression. This rule also includes the omission of critical information which creates a misleading impression (rule 3.3).

3. Comparative Advertising

Advertisers are permitted to compare the services or products they provide with those of their competitors provided they follow the rules surrounding comparative advertising. Firstly, the ad must not discredit or denigrate competitors (rule 3.42). For example, in 2018, an ad for a taxi company claiming “Uber – unsafe for passengers, unsafe for road users. Why trust them both with your data?” displayed with an image depicting theft went beyond robust and objective comparison and was denigratory. Advertisers should be mindful of this rule even when omitting the competitor’s name – there are several cases where the ASA found the company was identifiable for other reasons. Overall, in order to abide by the comparative advertising rules, ads must:

• Not discredit or denigrate competitors.
• Be based on objective criteria and verifiable data.
• Ensure truthful and fair comparison.

4. Health and Environmental Claims

In recent years, allegations of ‘green washing’ have crept into the media, referring to company ads or claims that create a false impression of certain sustainable or ‘eco-friendly’ practices that do not align with the company’s actions in reality. Media impressions aside, there are a number of regulations relating to environmental and health claims for advertisers to bear in mind. Environmental claims should be clear and substantiated and must avoid vague or ambiguous statements like “eco-friendly” without providing specific context. For example, a finding against HSBC ads explained that advertising the bank’s efforts to aid the global transition to net zero through various eco schemes was ‘misleading’ as it failed to mention the bank’s simultaneous involvement in the financing of businesses that made (and were continuing to make) significant contributions to greenhouse gas emissions.

Health claims, similarly, must be substantiated with evidence and are also subject to scrutiny under the Nutrition and Health Claims (England) Regulations 2007. Advertisers must consider health and advertising regulations carefully when advertising health or medical products or services.

5. Children and Advertising

There are a number of rules about advertising to people under the age of 16 – rules that are increasingly significant when considering the demographic of social media users and the difficulties in managing audience age and vulnerability. These rules are aimed at regulating advertisements that could cause physical, mental or moral harm to children.

There are a number of detailed rules under Section 5 and Section 8 of the CAP Code relating to harmful, offensive, inappropriate or frightening content. There are also regulations relating to the encouragement of dangerous or harmful behaviour and placing unfair pressure on children to buy products. There has been a focus in recent years on the promotion of unhealthy foods and drinks, as well as on the prohibition of targeting ads for alcoholic drinks at under-18s. Influencers and brands promoting alcohol on social media should be particularly conscious of the demographic of their following (see the Heineken case where the company was to prove that their following consisted of less than 25% of under-18s) and of promoting through celebrities that are likely to have a young following (see the Maxxium case here).

6. Data Protection

Finally, advertisers should also be careful when collecting and processing personal data through marketing and advertising activities. In particular, care should be taken in relation to:

The Data Protection Act 2018 and the UK GDPR:

• This governs the use of personal data in marketing.
• Explicit consent is required for data collection and usage.

Privacy and Electronic Communications Regulations (PECR):

• This applies to electronic marketing communications.
• Prior consent is required for sending marketing emails or texts.

Note that direct messages on social media platforms are likely to fall under communications that require explicit consent.

Key takeaways

Whilst there are a number of detailed rules regulating advertising and marketing in the UK, there are a few key principles that can help guide advertisers on all platforms. When in doubt, it is important to ensure that ads are transparent, authentic, fair, honest and unlikely to cause widespread offence.

If you are unsure about whether an ad or promotion is, or potentially will, breach UK regulations, please feel free to reach out to us for further guidance.