No #ad or #spon but Rooney Nike Tweet still OK

Footballers seem to love tweeting and brands seem to love getting them to tweet on their behalf. Wayne Rooney (with over 7 million followers) is no exception, and recently tweeted “The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1.” on behalf of Nike. A complainant challenged whether this was obviously identifiable as a marketing communication.

If at first you don’t succeed
You may recall that Rooney’s Tweets for Nike have been the subject of a previous ASA adjudication. Back in June 2012, Wayne tweeted “My resolution – to start the year as a champion, and finish it as a champion…#makeitcount gonike.me/makeitcount” which was found not be identifiable as marketing and therefore in breach of the CAP Code.

This time around though, Nike argued that the inclusion of ‘@NikeFootball’ would have left consumers in no doubt that the Tweet was a Nike marketing communication, and that it was potentially clearer than if they had included ‘#ad’ or ‘#spon’ disclosures. They also said that consumers would understand that a Tweet by Wayne Rooney would only include the @NikeFootball address if it was a Nike marketing communication. Additionally, because the Tweet was one of a series of five sent over four days, Nike said it would be clear the Tweet was part of a marketing campaign, especially considering the contrast between these and Wayne’s other Tweets around the same time.

ASA play ball
The ASA didn’t uphold the complaint. They stated that “the reference to Nike Football was prominent and clearly linked the tweet with the Nike brand. Whilst we considered that not all Twitter users would be aware of Wayne Rooney’s sponsorship deal with Nike … in the particular context of a tweet by Wayne Rooney the wording of the initial statement was such that in combination with ‘@NikeFootball’ and ‘#myground’ … the tweet was obviously identifiable as a Nike marketing communication.”

Why this matters:
For Nike this is certainly a victory given the previous difficulty with the ASA over earlier Wayne Tweets. For other advertisers and marketers, this also potentially opens up new ways of identifying incentivised Tweets as being marketing communications.

Historically, the ASA has seemed to take the view that ‘#ad’ or ‘#spon’ disclosures are required, and specifically referenced the lack of ‘#ad’ in its 2012 adjudication against Nike. What this adjudication shows though is that this is not always required, and other identifiers can potentially achieve the same thing – however, marketers should take care to consider the particular circumstances of this latest case and see if they can be applied to their own Twitter campaigns before taking the same approach.

By guest blogger Tom Harding, Senior Associate, Osborne Clarke, Bristol

This first appeared in October’s Marketinglaw.co.uk update.