by Martin Thomas, author of the forthcoming Financial Times Guide to Social Media Strategy, published by Pearson Education, late summer 2018
Martin Thomas will be discussing this topic in more detail during a Social Media Marketing Masterclass in Dublin on 1st February 2018.
Are you and your teams aware of the regulations governing the use of social media as a marketing communications tool? Could you be forced to scrap your next social media campaign or find yourself in trouble with the regulators? According to a survey by the Chartered Institute of Marketing (CIM), more than half of marketers have little or no understanding of the regulations affecting social media marketing.
The CIM was so concerned by the illiteracy of marketers when it comes to social media regulations that it launched a ‘Keep social honest’ campaign to promote the transparent and honest use of social media. Its chief executive Chris Daly says: ‘Businesses face a serious risk of regulatory or legal action, but they also need to understand that the penalties for misleading customers on social media go beyond that. Brands are putting their reputation at risk too.’ I would add that marketers are also putting their own reputations at risk.
There are three primary areas of regulatory risk that marketers need to be aware of when it comes to social media marketing:
1. Breaching advertising codes or regulations.
A social media post or tweet is considered as advertising by most regulators. This is particularly important in highly regulated sectors such as alcohol, healthcare or financial services, where there are strict rules governing all forms of customer communication. Diageo was recently forced to suspend its use of SnapChat for a global Captain Morgan campaign following a decision by UK regulators that it was likely to appeal to under-age consumers. This highlights the risks of working with social media channels that rely on the self-verification of users’ ages. Although Diageo’s lawyers argued that the creative work was targeted at over 18s, the Advertising Standards Authority in the UK was less convinced by the integrity of Snapchat’s age controls. It also suggested that the creative concept, which involved the creation of a Snapchat lens to make the user’s face appear like a pirate, was likely to appeal to under 18s.
The Alcohol Beverage Federation of Ireland has issued Digital Media Best Practice Principles to provide guidelines on the placement of advertising in ‘the digital media space’. Similarly, the Central Bank of Ireland regulates advertising for financial services and products, including the use of social media. It would be interesting to know when Irish marketers working in these sectors last read the regulations.
The burden of regulatory compliance is further complicated by employees’ use of social media. The codes governing appropriate communication apply as much to posts or tweets issued by employees as they do to the official corporate channels: for example, an Instagram post issued by a drinks company employee - showing consumers clearly in an intoxicated state whilst enjoying one of their brands - is actually in breach of drinks industry advertising regulations. The same constraints apply to employees of financial services or healthcare businesses.
And don’t think they can hide behind the disclaimer that ‘these views are mine and not those of my employer’. Forbes Magazine, in an article appropriately entitled Why Twitter Disclaimers Like 'Views Are My Own' Won't Save Your Job quoted the opinions of various legal experts who confirmed that a disclaimer, irrespective of the wording, has no legal effect and would not enable employees to avoid legal liabilities. In the words of one of the lawyers quoted in the article, Dan Schaeffer from law firm Neal & McDevitt: ‘It’s not going to prevent your employer from firing you if you say something that reflects badly, and it’s not going to prevent people from associating your views with your employer.’
2. Failing to disclose the payment of influencers.
The use of influencers or brand ambassadors has become a core element of most brands’ use of social media, but it risks blurring the boundaries between advertising and editorial. The view of the regulators is unequivocal – any paid-for endorsement must be clearly identified. The Advertising Standards Authority for Ireland (The ASAI) introduced new guidance on the ‘Recognisability of Marketing Communications’ in January of last year, to ensure that ‘Irish consumers are not misled by influencer marketing through online advertisements on blogs and social media websites.’ The ASAI reinforced the requirement to make it clear where an endorsement is paid-for and also recommend the use of clearly identifiable hashtags such as #Ad or #SP. Bloggers and online influencers are already required to adhere to The ASAI’s Code of Standards for Advertising and Marketing Communications in Ireland.
Regulators have been slow to respond to breaches of the regulations, but there are signs that this is beginning to change. One of the world’s leading brand owners, Procter & Gamble, was forced to remove a make-up tutorial that appeared on its Beauty Recommended YouTube channel. Despite a clear message at the beginning of the video stating that the content was sponsored, the ASA ruled that it was in breach of one of its CAP Codes because it was ‘not obviously identifiable as marketing communications’.
3. Misusing personal data
Data privacy is a serious issue in many countries, which is why governments are increasingly legislating against what they consider to be the misuse of individual consumer data. EU legislators have threatened large fines for any organisations guilty of misusing personal data and this includes data sourced from social media. It is acceptable for researchers and marketers to look at individual tweets or posts that appear as part of a Google search, but as soon as they use them for research purposes they need to be aware of the sensitivities of using private data. Jeremy Hollow, founder of Listen & Learn Research, a specialist social data analyst explained to me how his analysts are careful to abide by the market research codes and ethics: ‘We will look at publically available social data but we always make sure that comments or other forms of content are not attributable to a specific individual, which means we either aggregate the data with that of other individuals or change the details so that the specific individual is not recognisable’.
It pays to be cautious when using personal data – even featuring someone’s tweet or post in a public forum is effectively a breach. Marketers should also ensure that everyone likely to use social media data is fully aware of the relevant regulations governing permissions and ‘opt-ins’.
Marketers and their teams are failing consistently to comply with industry regulations or codes of practice when it comes to social media. In the eyes of the regulators and the general public, ignorance is no excuse. And if something goes wrong – a social media campaign violates advertising codes, the payment of an influencer is not disclosed or a customer’s personal data is misused – it will be the marketer that is in the firing line.
These are my suggestions for how you can avoid getting on the wrong side of the regulators:
1. Make sure you and your teams understand the relevant regulations and codes governing your industry sector;
2. Stay close to the regulators, as the rules governing social media are in an almost constant state of flux;
3. Establish the appropriate systems, compliance processes, policies and training to ensure that your team and your agency partners abide by the rules;
4. Avoid pushing the boundaries, especially when it comes to the identification of paid-for activity – honesty and transparency should be non-negotiable.
5. Stay vigilant – social media has a nasty habit of producing unexpected or unforeseeable challenges for marketers.
We have created our Masterclass series for senior-level marketers looking to take a deep-dive into a specialised topic, to enable them to make insightful decisions and better choices for their business. The series is focused on helping you develop competencies specific to the knowledge, skills and mindset required of senior marketing leaders. We will host a Masterclass with Martin Thomas on Thursday 1st of February. More information on this Masterclass can be found here.
ABOUT THE AUTHOR
Martin is a highly experienced marketing communications consultant, trainer and author. He is course leader on digital and social media for the Institute of Directors UK. He has enjoyed a highly successful career in advertising, PR, sponsorship and new media, including senior management roles with some of the world’s leading agencies.
He has advised many multi-national corporations on their marketing and communications strategies, including Xerox, Citibank, Bacardi Global Brands, Sony Ericsson, Royal Mail, Coca-Cola and Colgate-Palmolive. Much of his work in recent years has focused on the business response to new, digitally-empowered patterns of customer behaviour and changing expectations: a subject on which he has become a highly-regarded writer, speaker and commentator.