ASA to extend its remit to Advertising on Social Media Platforms

Advertisers well versed in the Code as it applies to adverts in paid-for advertising space will have to take a different approach to the clearance of social media activity than they do to their linear forms of advertising and consumer engagement. Social media, almost by definition, is interactive, consumer-led, instinctive and transitory. Advertisers will therefore have to use the Code to cover material produced in a less formal way to a traditional campaign. Until the ASA produces its first adjudications, we can only make educated guesses at whether and how it will apply the Code in a way tailored to the new forms of content it will have in its remit.

The basic point is that the Code will apply to all content produced under an advertiser's control whose primary intention is to sell something. The ASA will also ask itself whether the communication has appeared in that form in paid-for third party space or if it contains information on the characteristics of the product and the price. The content of official Twitter feeds and Facebook pages will be caught. Advertisers with presences in a number of forums, for example third-party websites, will have to keep an eye on a potentially extensive range of material.

What if a tweet is posted as a knee-jerk reaction to an event but, on second thoughts, is taken down a few moments later? Will the ASA apply a form of "de minimis" test (similar to the approach taken in defamation law) and find that communications technically in breach of the Code but that appear only on a temporary basis do not merit censure? The ASA might even find it harder to prove there was a breach in the first place so could end up fighting a losing battle against a more nimble enemy.

Will the ASA apply its standards in a tailored and contextualised way when dealing, for example, with alcohol and gambling websites which typically require users to confirm their age before browsing? The requirement to sign-up and self-certify suggests that the decency and responsibility standards could be applied differently to niche and specialist social media content.

Advertisers should not forget that the generally applicable advertising regulations tend not to differentiate between which media outlet is used. A salutary lesson comes out of a US case last year when the American regulator, the FDA, issued its first Facebook-related citation in connection with Novartis' (a drugs company) social media activity. Content about one of its products which was shared through news feeds did not, in breach of the America rules of marketing of drugs, contain the necessary risk information.

Advertisers who encourage their target public to engage with their campaigns and create content will have to review whether and when that content will fall within the remit of the Code. The focus of the ASA will be on whether the website owner "adopts and incorporates" the user generated content (UGC). The passive receipt of UGC (e.g. a post on a Facebook page) should, therefore, fall outside the Code's remit. It is an open question, however, whether UGC which remains on a website for a period of time will be implicitly "adopted and incorporated". Those advertisers who invite users to submit content which is reviewed before being posted online (e.g. in response to a competition) are more obviously "adopting and incorporating" the UGC.

There will be new challenges for advertisers who use social media but once the need to ensure all communications are legal, decent, honest and truthful is fully embedded across an organisation's social media processes and practices, the standards should be attainable. Ultimately, it is in an advertiser's best interests to comply with these standards: as social media depends on engagement to be fully effective, consumers are unlikely to engage with brands with a reputation for irresponsible and misleading marketing.

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