Remember retweeting content makes you responsible for it
The Ad rules do not apply to genuine user generated content (UGC) on social media. However if an advertiser reshares UGC it "adopts and incorporates" it meaning the advertiser becomes responsible for the content. So if there's a claim in the content, the advertiser will need to hold evidence for it, and if the product is subject to additional rules for a restricted product they will also apply. In this instance, the user tweet featured frozen slushies with miniatures of the advertiser's vodka sitting in a car and the ASA upheld against the retweeting advertiser for linking alcohol and driving. The fact that the UGC had included "*Drink Responsibly & don’t drink and drive*" was not considered sufficient to mitigate the fact the image showed alcohol in a car, (Au Vodka Ltd 26 July 2023).
Don't imply non-authorised persons can give financial advice
Only authorised persons may give financial advice on topics such as whether or not someone should apply for an equity release policy. Solicitors might be involved in the process of an application but cannot give the advice. A TV ad which included the claim within a testimonial "Speaking to family solicitors they actually suggested equity release" was found to be misleading by the ASA because it implied a solicitor had recommended a financial instrument as a way to solve a specific financial problem and that family solicitors were a suitable source of financial advice when this was not the case, (Age Partnership Ltd 26 July 2023).
The reason the ASA ruled on this is because the Financial Conduct Authority (FCA) has an arrangement with the ASA which means the ASA will investigate complaints against financial advertising on broadcast television. If the ad had been in non-broadcast media, it would have been dealt with by the FCA.
Make the commercial intent clear
Consumers need to know when a recommendation or review has been paid for, or is part of a commercial relationship. In this instance an appointment booking service was found to breach the Ad Code because it didn't make clear that being "Booksy recommended" was part of a paid for service and not a genuine recommendation. The ruling reiterates the ASA's position that it needs to be immediately clear to consumers when they are looking at an ad as is reflected by the fact that the advertiser's offer to explain further in the T&Cs wouldn't be sufficient, because consumers would need to seek that information out, (Booksy UK Ltd 2 August 2023).
Ensure the mechanism for allocating tickets is clear
The ASA upheld 96 complaints relating to a series of direct marketing emails regarding allocation of tickets to The Coronation Concert on the basis that the ads were misleading. Initially it stated that tickets would not be allocated first come first served, but after two rounds of ballots, tickets from a third ballot were offered on a first come first served basis. Mailings for the third ballot claimed "Congratulations, you have been successful in the ballot for a pair of standing tickets to The Coronation Concert" but recipients had in fact been selected to enter a supplementary round with an additional chance to get tickets on a first come first served basis, (BBC Studios Productions Ltd 26 July 2023).
How to mitigate these risks
- Review UGC against the CAP Codes before resharing
- Consider whether the wording of a testimonial goes further than the scope of the service legally offered (even if that isn’t the service being advertised)
- Remember that if you're receiving payment for better listings, those listings are ads
- Call your friendly neighbourhood advertising and consumer products lawyer to get help with most of the above (and connect you to the right financial regulatory advisors too)
Please contact our authors Katharine Mason or Dominic Watkins if you have any queries or would need legal advice.
