Paid for Tweets - a legal perspective.
By Brett Farrell an Associate and Katie Hill a trainee at Barlow Robbins LLP, intellectual property specialist law firm.
One cannot fail to see that social networking is attractive to all sorts of individuals and businesses but in particular has become something of a liberation for vulnerable people. In many ways it allows the bypassing of physical interaction with which they may struggle for a whole myriad of reasons. Just imagine for one moment, if you will, an introvert, lonely and largely bereft of conventional social interaction. This person might be old or young, might face mental health challenges, have no friends or family locally, be shy or might just simply prefer things this way. Whatever this person is, social media is their release. They follow celebrities on Twitter and these celebrities can feel like friends. Trusted. Valued. Esteemed.
The celebrity friend voices their concerns, their rants, their loves, their hates and, through social media, this person listens. It is not outside the realm of possibilities that if one “friend” recommends a specific noodle then this person gives it a whirl. If another extols a wonder skin cream then that’s the next must have. But is it clear whether these celebrity friends are speaking freely or whether they are paid to endorse certain products? Do we know and, more importantly, does anyone care?
The Office of Fair Trading (OFT) says yes.
The OFT claims that tweets and other posts made by celebrities who are contractually obliged or otherwise incentivised to plug the product are misleading if the motivation for the tweet’s content is not expressed. These tweets are a form of advertising, the very nature of which is to encourage followers to follow suit and try out the product and ultimately fall in love and be unable to live without it. The OFT’s problem is not the advertising per se but the duplicity and the potential exploitation of people, particularly the vulnerable, who are unaware that this is not an opinion expressed by their friend but something that their friend is obliged to say.
The Advertising Standards Agency (ASA) deals with advertising and the CAP Code which provides the framework of self-regulation. The essence of the Code is that that advertising must be legal, decent, honest and truthful, must not mislead, cause offence and must be capable of being objectively substantiated. Consumer protection is key. Come March 2011 the Code’s reach will extend to the digital remit and include adverts and marketing communications on companies’ websites and other unpaid for online space which is in that company’s control. This could conceivably include tweets where the content, or at least spirit, is dictated by that celebrity’s sponsor. The extended Code will be broadly interpreted and is designed to get to the heart of the advert – if it’s intention is to sell something, regardless of whether a price is displayed or call to action communicated, it could still be covered. The ASA will consider complaints on a case by case basis in the event of an alleged divergence from the Code. It does however seem at least possible that the ASA might soon be inclined to follow the OFT’s lead and take steps to address marketing communications where the motivation is undisclosed and they could therefore potentially mislead. The OFT and ASA must seek to protect the public at large but whilst the masses take their pinch of salt, surely vulnerable people who may not be able to discern a genuine endorsement for a contrived plug who are in need of protection here.
Does this feel like a world gone mad where common sense no longer prevails and people cannot be trusted to protect themselves and inject some rationality into their own decisions, or is it right that the nanny state should hold all of our hands in every decision we have to make? For the majority, the answer is yes, it is overkill, but there will always be some for whom hand holding of this nature is valuable and indeed in some cases essential. It is not a life or death situation and certainly the credibility of a celebrity may be dented by the requirement to disclose the fact that their tweets are incentivised but celebrities must realise that irrespective of the changing law, they do have a social responsibility and, as role models to so many, should act with integrity and decency and with one eye on the effect they have on those in their shadow.