So what are the key rules for social media marketing?
The rules and regulations that apply will vary depending on the platform used for advertising and the nature of the ad. For example, the ASA has published specific guidelines on influencer marketing to address the nuances of social media platforms and the nature of sponsored content. There are also specific rules on health and environmental claims, and children in advertising. Below are some key points about each:
1. Transparency in Social Media and Influencer Marketing
Especially over the last decade, platforms like TikTok and Instagram have become incredibly effective advertising vehicles that can be leveraged in a variety of ways. From product giveaways to hosting virtual contests with prizes, the reach and engagement that can be achieved through social media, with approximately 4.9 billion users across all platforms, makes it an invaluable advertising tool. However, for each type of advertising strategy, there are some regulations to keep in mind. There are some overarching principles that can be applied to all types of posts:
Perhaps the most important principle is transparency. Influencers must disclose all paid partnerships and must not hide or omit any relationship with the brands or products they post about. This requirement is typically covered by the inclusion of “#ad,” “#sponsored,” or “#gifted” to indicate this relationship. As mentioned at the beginning of this article, the ASA's request to Grace Beverley to remove a post promoting the latest product of her brand, TALA, is an example of the enforcement of this principle. Beverley claimed that all of her Instagram followers knew that she was the founder of the brand, but the ASA argued that Beverley did not make this clear enough in the video she posted, and therefore lacked transparency to the viewers of the video. Transparency goes hand in hand with another important principle: authenticity. All claims made in social media posts must be genuine and verifiable, and must not include deceptive practices such as fake reviews. The ASA has published a ton of guidance on these issues, all of which is linked in this article.
Advertisers and content creators should be careful when running competitions or prize draws as they may constitute illegal lotteries and breach rules enforced by the ASA and policies imposed by social platforms. The ASA points out the following key points to remember:
- Include all important terms in your initial contest ad (Rule 8.17 CAP Code), for example whether users must follow the contest organizer's account to be eligible for entry.
- Provide a clear link to your full terms and conditions. Rule 8.28 specifies what your terms and conditions should contain.
- You may not amend or vary these Terms and Conditions during the Promotion Period (Rule 8.23). This is only permitted in exceptional circumstances.
- Deal fairly and honestly with participants.
- Make sure you have the right resources to run your processes properly. For example, if your competition asks entrants to like, comment and follow, make sure you have a process to fairly check these requirements depending on the number of entrants taking part. See the ASA's ruling on Molly-Mae Hague promotion here.
- Prize draw winners must be selected at random (Rule 8.24).
- You must, of course, ensure that prizes are awarded in full or their equivalent where necessary, and you must be able to prove that you have done so. There is no cost to participants in collecting their prizes (rule 8.21.1).
There are a few other important regulations to be aware of when advertising on social media, some of which are briefly explained below:
2. Misleading advertising
Advertisers should also be familiar with the rules on misleading advertising. This includes being careful not to make false claims about product features or factors that could reasonably influence a consumer's decision. For example, advertisers should be careful not to display false customer reviews. In the case of Rental Republic, claims of high ratings on Trustpilot, Facebook and HomeAway were found to be inaccurate and to create a misleading impression. The rules also include omitting important information that creates a misleading impression (rule 3.3).
3. Comparative Advertising
Advertisers may compare the services or products they offer with those of their competitors, subject to the rules on comparative advertising. First, the ad must not discredit or denigrate a competitor (rule 3.42). For example, in 2018, an ad for a taxi company appeared that claimed “Uber is not safe for passengers or road users. Why should we entrust our data to both?” along with an image depicting theft. This went beyond a robust and objective comparison and was defamatory. Advertisers should be mindful of this rule even if they omit the name of a competitor. There have been several cases where the ASA has found that a company could be identified for other reasons. Overall, to comply with the comparative advertising rules, an ad must:
- Do not disparage or denigrate competitors.
- Based on objective criteria and verifiable data.
- We ensure a true and fair comparison.
4. Health and Environmental Claims
In recent years, allegations of “greenwashing” have crept into the media, referring to companies' advertising and claims giving a false impression of sustainable or “environmentally friendly” practices that do not match the company's actual behavior. Media impressions aside, there are some regulations advertisers should bear in mind when it comes to environmental and health claims. Environmental claims must be clear and substantiated, and vague and unclear language such as “green” must be avoided. For example, an investigation into HSBC's advertising described the bank's promotion of its commitment to supporting the global transition to net zero through various eco-schemes as “misleading” because it failed to mention that the bank is simultaneously involved in lending to companies that have (and continue to) contribute significantly to greenhouse gas emissions.
Similarly, health claims must be substantiated by evidence and are subject to scrutiny under the Nutrition and Health Claims (England) Regulations 2007. Advertisers should carefully consider the health and advertising regulations when promoting health or medical products or services.
5. Children and Advertising
There are a number of rules regarding advertising to people under the age of 16, which are all the more important given the demographics of social media users and the difficulty of managing the age and vulnerability of audiences. These rules aim to regulate advertising that may cause physical, mental or moral harm to children.
Sections 5 and 8 of the CAP Code have a number of detailed rules on harmful, offensive, inappropriate or frightening content. There are also regulations on encouraging dangerous or harmful behaviour or putting undue pressure on children to buy products. In recent years there has been a focus on banning the promotion of unhealthy food and drinks, and advertising of alcoholic drinks to under-18s. Influencers and brands promoting alcohol on social media need to be particularly mindful of their follower demographics (see the Heineken case, where they had to prove that less than 25% of their followers were under 18) and promoting through celebrities who are more likely to have younger followers (see the Maxxium case).
6. Data Protection
Finally, advertisers should also exercise caution when collecting and processing personal data through their marketing and advertising activities, in particular:
Data Protection Act 2018 and UK GDPR:
- This governs our use of your personal data for marketing purposes.
- Explicit consent is required for data collection and use.
Privacy and Electronic Communications Regulations (PECR):
- This applies to electronic marketing communications.
- We require your prior consent to send you marketing emails and texts.
Please note that direct messages on social media platforms may constitute communications requiring your express consent.
