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A tweet by “Wayne Rooney” landed Nike in front of the Advertising Standards Agency (ASA) again last month, following a complaint by a user of Twitter that the tweet was not obviously identifiable as a marketing communication and was therefore in breach of the Committees of Advertising Practice (CAP) Code 2.1, 2.3 and 2.4. The ASA’s decision on this tweet is interesting in light of its previous decision in a similar case involving Nike and Mr Rooney, and is worthy of note for any lawyers involved in advising sports teams and players on devising social media policies and/or regulating their social media use on a personal level.

The ASA’s previous decision (http://www.asa.org.uk/Rulings/Adjudications/2012/6/Nike-(UK)-Ltd/SHP_ADJ_183247.aspx) from January 2012 related to two tweets, one sent by Wayne Rooney and one by Jack Wilshere in their roles as brand ambassadors for Nike. The content of these tweets was, as Nike put it, “agreed with the help of a member of the Nike marketing team” (the assumption that a similar process was involved for the tweet in the more recent decision is the reason for the scare-quotes around Rooney’s name above). The tweets from this decision read as follows:

“My resolution – to start the year as a champion, and finish it as a champion…#makeitcount gonike.me/makeitcount” [Rooney];

“In 2012, I will come back for my club – and be ready for my country. #makeitcount.gonike.me/Makeitcount” [Wilshere].

The ASA found these tweets were not obviously identifiable as Nike marketing communications, might mislead consumers and therefore were in breach of CAP Codes 2.1, 2.3 and 2.4. In the reasons provided for its decision the ASA suggested that the use of hashtags such as #ad might be included in tweets in future to avoid this problem, a suggestion which was adopted and recommended as best policy by many commentators and lawyers working in this area.

However, following this advice and adopting such “best practice” can bring other problems as Rio Ferdinand discovered when he sent a number of tweets that obviously promoted Snickers and included the hashtag #spon. Ferdinand’s followers on Twitter responded negatively to such obvious marketing complaining “Do you really need the money that badly?” and “I’m not on here to be advertised at” (http://www.telegraph.co.uk/technology/twitter/9036278/Twitter-users-angered-by-Rio-Ferdinands-Snickers-adverts.html). The dilemma therefore seemed to be do you make your sponsored tweets obvious and annoy the target audience, or be subtle and risk the censure of the ASA?

This brings us to the latest decision by the ASA, which seems to indicate that a more nuanced approach may now be permissible, providing more flexibility in navigating between these particular devils/scyllas and deep blue seas/charybdises. The tweet that formed the subject of this decision read:

“The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1″.

This time the ASA decided not to uphold the complaint, finding that it would have been acceptably obvious to users of Twitter that the tweet was part of a marketing campaign by Nike, even though no explicit reference was made to it being so and no #ad or #spon was included.

Nike’s arguments strongly relied upon the fact that @NikeFootball had been included in the tweet and the ASA seem to have agreed that this was important noting its inclusion “was prominent and clearly linked the tweet with the Nike brand”. The ASA’s reasoning is otherwise tantalising brief concluding “we considered that in the particular context of a tweet by Wayne Rooney the wording of the initial statement was such that in combination with “@NikeFootball” and “#myground” the overall effect was that the tweet was obviously identifiable as a Nike marketing communication”.

Perhaps the inclusion of the picture linked to in the tweet, which was very clearly a professionally staged promotional shot for Nike, helped. However, those of satirical nature might be prefer to read into the words “the particular context of a tweet by Wayne Rooney” a sneaky dig at the pithy erudition with which the England and Manchester United hero normally expresses himself. Perhaps here at last is the way forward for the savvy advertiser? Pick an ambassador whose literary skills provide a context in which your beautifully crafted advert-tweets shine with such brilliancy not even the most unsuspecting user could mistake it for anything but a message from our sponsors…

More seriously, this ruling does seem to suggest that while sponsors and the players working for them still need to be careful in ensuring any marketing messages can be obviously identified as such, there is no longer a need to be a slave to the hashtag. As long as the tweet is not misleading, advertisers can now be a bit more creative in getting their message across and have been given a few precious extra characters to play with in doing so.

To read the ASA’s full decision click herehttp://www.asa.org.uk/Rulings/Adjudications/2013/9/Nike-UK-Ltd/SHP_ADJ_229986.aspx and for more on social media and sport click herehttp://www.blackstonechambers.com/sector_expertise/sports_law.html to read Blackstone Chambers’ Kate Gallafent’s detailed lecture on the topic.

Clerks

Staff