Meaning of 'Obviously Identifiable' for Marketing Communications

A recent Advertising Standards Authority ruling has underlined the importance of stating #ad in order to ensure marketing communications are obviously identifiable as adverts.

Sony Interactive Entertainment Europe Ltd t/a Playstation Plus,  Upheld

Social media (influencer or affiliate ad)  21 December 2022  Two Twitter posts on Rio Ferdinand's account were held to be not obviously identifiable as ads.  Sony Interactive Entertainment Europe Ltd - ASA | CAP        

The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.

Prominent branding logos and hashtags stating partnership, were found not to be sufficient to make tweets ‘obviously identifiable.’ It was also found that tweets made in reply could also form part of marketing communications.            

There was a financial agreement between Sony Interactive Entertainment Europe Ltd (Sony) and Rio Ferdinand which involved a contract that covered an initial Tweet concerning Mr Ferdinand’s visit to “PlayStation House”.

The contractual agreement did not include the content of a reply tweet Mr Ferdinand made but he had used the hashtag “#PlayStationHouse”, and it was included in the Twitter thread started by the first ad.

The second tweet was not part of the contractual agreement but the hashtag used referenced the PlayStation brand and Sony’s promotional event, and the images used had been provided by Sony. The ASA therefore considered that in that context, Sony had exerted sufficient control over the content of the post, in conjunction with a payment arrangement concerning the first ad, for it to be considered a marketing communication falling within the remit of the CAP Code.

Although (i) the hashtag “#PlayStationPartners” was intended to refer to the commercial relationship; and (ii) Followers were found to be likely to understand from the branding and set dressing this was marketing, the ASA still considered that the language used was not sufficiently clear to ensure that the posts were obviously identifiable as ads.

This shows that 'obviously identifiable' actually imposes an extremely high threshold and in order to be safe all marketing communications, including those within the thread itself, should be marked '#ad'.

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