Blurred lines: 4 ways your online ads could be breaking the law

As marketers and advertisers find new ways of reaching their audiences online, regulators inevitably find new ways to protect consumers. But staying up-to-date with new regulations isn’t easy, especially as the lines between ‘what is advertising and what is not’ have blurred. With sponsored vlogs, content, Instagram posts and tweets all considered as valid forms of advertising by the Advertising Standards Authority (ASA) and the Committee of Advertising Practice (CAP), keeping up with their regulations can be a minefield.

The fragmentation of the media landscape

Thanks to the multi-screen world we now live in and our changing media consumption habits, the modern media landscape continues to fragment. As new content formats emerge, the proliferation of channels available grows – often with self-serve advertising platforms. And when it comes to advertising on those channels, everyone seems to be ‘at it’ with global internet advertising spend expected to overtake television for the first time in history this year. While in the past there was a clearer line between who created the content and who promoted it, declining / non-existent organic reach has also blurred the lines when it comes to who’s in charge. It’s not only your typical ad exec or media buyer in charge anymore. Whilst programmatic is often handled by media buying agencies, there’s a huge amount of content amplification run by a range of different marcomms teams – from content marketers, community managers, social strategists, influencer marketers, PR teams. The list goes on.

Our responsibility for ethical advertising

In today’s era of “fake news”, misinformation and alternative facts, comms professionals have more responsibility than ever before to promote content that is legal, decent, honest and truthful – and to promote it in a way that is above board. So how do you know whether the way you’re promoting content is breaking the law? Here are four things to consider and some handy tips on how to stay up-to-date.

1.   If you’re paying for a post, make sure it’s marked as an ad

If consumers are being advertised to, they need to be aware of it. With influencer marketing now being mainstream, the ASA have strict guidelines about ads being clearly identifiable, famously banning Oreo’s Lick Race back in 2014 (the first ever YouTube ruling). If you’re paying an influencer to post on your behalf, it’s your responsibility to ensure they are identifying it as advertising. Unlike traditional publishers, social influencers are often less aware of legal best practice – especially as laws and regulations develop so quickly. Ensuring the hashtag #ad is used is sufficient, as long as consumers can see it before they click / consume the ad. (Note that #spon and #sp are no longer acceptable if you have editorial rights). If paying for a video, make sure your audience know it’s an ad before they hit play. Made in Chelsea star Millie Mackintosh landed herself in hot water last year with a promoted post for J20 that only revealed it was an ad in the end frame of the Instagram video. The ASA didn’t consider the post accurately labeled and had it removed from Instagram.

2.   Think before you retweet

Retweeting, commenting on or even liking another user’s post is seen as “adopting and incorporating” messaging into your own marketing comms. So think carefully before re-sharing any user generated content too, as the ASA will consider it subject to the CAP code and label it as endorsement. More info from the ASA here. As Keith Wyness, the CEO of Aston Villa will be aware, even if you don’t produce defamatory content, but act on it by retweeting or liking it, you can get in trouble. This month he faced a fine of £10,000 and was suspended from all football-related activity for three weeks by the Football Association for retweeting an “abusive” social media post.

3.   Don’t exaggerate or mislead

Be careful not to misrepresent the capability, size or performance of a product. Whether you’re a food brand like Birds Eye falsely advertising the size of a new ready meal or a cloud service provider promoting new storage size – if you’re making claims, you better be able to back them up. Brands promoting misleading content could even put consumers’ lives in danger. Volvo’s LifePaint ad campaign promoted a high-vis spray paint designed to help cyclists stand out at night was recently canned for its exaggeration. The glow-in-the-dark bicycle effects shown in the film were condemned as misleading and the ad was pulled by the ASA.

4.   Target your ads responsibly

While TV advertisers can rely on the post-9pm watershed to schedule ads (hopefully) only targeting adults, the world of online advertising is less black and white. Parental controls exist, but it’s up to advertisers and marketers to target their ads effectively and to responsibly use the targeting options available. Age and interests are two good ones to start with. With programmatic, consider blacklisting (or whitelisting) sites where you don’t (or do) wish your ads to show. An example of this type of barring of ad placements can be enabled on Facebook and Instagram’s Audience Network. Food and drinks brands should be especially careful – from the 1st July tough new rules banning the advertising of high fat, salt or sugar (HFSS) food or drink in children’ media will come into play. The rules will apply across all non-broadcast media including in print, cinema and, crucially, online and in social media.

So how do you keep up with the changes in regulations? Firstly, subscribe to the ASA and CAP newsletters by creating an account to keep up to date with rulings, relevant case studies and events. If you’re concerned about your adverts violating guidelines, there’s a free advice service (24 hour turnaround) and a paid express service (4 hours) where a team of advisors will provide expert advice on the compliance of your campaigns and any content. Or come and have a chat with us at Brands2Life? We run many paid media programmes of every shape and size and would love to help you with your next campaign.

Written by Victoria Crump-Haill,  Associate Director, Digital.

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