ECJ ruling encourages copyright holders to shoot the messenger

In their decision issued last week in the case of UPC Telekabel v Constantin Film, the European Court of Justice (ECJ) confirmed that EU states have the right to issue injunctions requiring internet service providers (ISPs) to block their internet users’ access to copyright-infringing websites.

Whilst at first glance the decision may appear to be a landslide victory for rights owners, the decision also offers welcomed clarity to ISPs on the extent of their obligations to prevent infringements.

The ECJ’s decision arose out of an Austrian case involving an application by two film producers, for an injunction requiring an Austrian ISP to prevent its users accessing a website that enabled its users to stream or download films which infringed the producers’ copyright.

According to Article 8(3) of the Copyright in the Information Society Directive (2001/29) (Directive), national courts have the power to grant a blocking injunction against an ‘intermediary’ whose services are used by a third party, to infringe copyright or related rights. The ECJ’s decision addresses two key issues; firstly, what sort of intermediaries can be subject to injunctions under the Directive, and secondly, what form of injunctions can be granted against them?

Can an injunction be granted against an ISP as an intermediary?

The primary issue to be determined by the court was whether a party making infringing information available on their website ‘uses’ the services of the ISP whose customers access the website to do so, where the ISP’s customers themselves have not committed an infringement, thus providing a jurisdictional platform for courts to grant injunctions against such an ISP.

UPC argued that they had no contractual business relationship with the website operators, having neither made internet access or storage space available to them. Since it could not be established that their direct customers acted unlawfully (although, as the Advocate General Cruz Villalon pointed out in his preceding opinion delivered back in November, it could be assumed with near certainty that they took advantage of the services on offer on the offending website), they maintained that it could not be considered that their services had been used to infringe a copyright or related rights. UPC also emphasised that, in any event, the various blocking measures available were excessively costly, especially as for the most part they could be easily circumvented with minimal technical expertise.

Contrary to the assertions of UPC, the ECJ found that where an ISP’s service users access infringing content on a website, that ISP is in fact an intermediary whose services are used to infringe copyright within the scope of the Directive, and as a result they can be subject to injunctions forcing them to block access to the offending sites. They cited the rationale that the ISP “is an inevitable actor in any transmission of an infringement over the internet between one of its customers and a third party, since in granting access to the network it makes the transmission possible.”

In their decision, the ECJ recognised that, on a practical level, as the services of intermediaries are increasingly used to infringe copyrights, such intermediaries are often ideally placed to take preventative action. The ECJ emphasised that in order to fulfil the key objective of the Directive, which is to guarantee right holders a high level of protection as outlined at Recital 9 of the Directive, ISPs must be included within the parameters of Article 8(3), because to rule otherwise would substantially diminish the protection afforded to such right holders.

This means that in future it will not be necessary to show a specific relationship between a person infringing copyright and the intermediary against whom an injunction may be issued, nor will it be necessary to prove that the customers of the ISP in question actually access the protected subject matter on the known infringing website, as the ECJ reiterated that that spirit of the Directive required Member States to not only take action to bring existing infringements to an end, but also to prevent further infringements, or at least make them more difficult to commit.

Can an injunction be granted without specifying the means of implementing it?

Having decided that an injunction could be granted against an ISP in the circumstances outlined, the ECJ then proceeded to consider the nature of the injunction to be granted, and in particular whether the Austrian court’s approach in leaving the ISP to decide the means to be used in blocking the website was acceptable, or whether the court should be required to specify any prescribed block should be implemented.

In reaching their decision, the ECJ recognised the tension between the ISP’s freedom to conduct a business, the internet users’ freedom of information, and the right holders’ copyright, and emphasised the need to achieve a “fair balance” between these fundamental rights. In assessing whether such a balance had been struck, the ECJ found that by giving the ISP a wide discretion to determine the appropriate measures to implement a block of the website, the Austrian Court’s ‘results’ form of injunction had in fact ensured the optimum business freedom of the ISP, as they could choose to put in place measures best adapted to their available resources and the challenges of carrying on their particular business activities. Furthermore, provided the ISP had taken all measures “capable of being considered reasonable”, they could rest assured that they would not be held liable for breach of the injunction, thus ensuring that an ISP cannot be expected to make unbearable sacrifices in order to protect the conflicting interests of a rights-holder.

In this regard the ECJ judgment differed from the opinion of the Advocate General, where he expressed the view that it would be “incompatible with the weighing of the fundamental rights of the parties to prohibit an ISP generally [from accessing an infringing website] and without ordering specific measures”.

The Advocate General did, however, acknowledge that a specific blocking measure imposed on an ISP relating to a specific website would not automatically be disproportionate simply because it entailed not inconsiderable costs and could be easily circumvented without any special technical knowledge.

The ECJ imposed two conditions on the granting of a general injunction such as that proposed by the Austrian court in order to ensure a fair balance is struck between the fundamental rights of the parties:

(i)            Firstly, measures must not unnecessarily deprive users of the possibility of lawfully accessing the information available, so in other words measures must be strictly targeted to ensure that internet users’ right to freedom of information is not be curtailed more than is necessary; and

(ii)           Secondly, those measures must have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging users accessing the infringing subject-matter. This means that courts will not decline to grant an injunction just because there is no fool-proof solution available. As the English High Court has acknowledged “a blocking order may be justified even if it only prevents access by a minority of users”.

The ECJ declined to elaborate further on how best to balance and protect the competing rights of parties in such a case, leaving the ultimate decision as to “fair balance” in the domain of national courts.

In order to ensure that the fundamental rights of internet users are afforded adequate protection, and are not diminished in the wake of an insurgence of applications for injunctions by rights-holders, the ECJ also introduced the concept that internet users can assert their rights before national courts, ensuring that they have a forum for redress where they believe measures imposed by an ISP are unduly restrictive.

The battle is won, but the war has just begun…

Whilst the International Federation of the Phonographic Industry (IFPI) has issued a positive statement in support of the ECJ ruling, which undoubtedly represents a string to their bow in fighting online piracy, the decision is unlikely to have a notable impact on the approach of the UK courts to website blocking. The High Court had already been persuaded to grant specific injunctions against a number of ISPs under domestic intellectual property legislation before the recent judgment came to light, and is likely to continue to grant such orders without hesitation in the future, particularly with the reinforcement of an ECJ decision behind them. Other EU member states are now likely to follow suit, adopting an approach more consistent with that already prescribed by English law.

Whilst those campaigning for better protection of intellectual property rights are celebrating their apparent victory, they may stop to consider that whilst in principle the ECJ ruling is a step in the right direction, in practice the operators of illegal websites, and the ISPs making them available online, are often based outside of Europe or conceal their identity, which means that in reality it is very difficult to pursue them before the courts. Let the historic examples of the difficulty encountered in shutting down notorious copyright-infringing sites such as Pirate Bay serve as a cautionary warning not to celebrate too soon – the road ahead for rights-holder’s crusading against piracy in the internet age is a treacherous one; and for every website you successfully shut down you can all but guarantee the same will resurface under a different address or hosting provider!

The Impact of the New Consumer Contracts Regulations

Background

If you sell goods, services or digital content to consumers, the recently published Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) (the “Regulations”) are likely to affect the way you carry out your business.

The Regulations will apply to consumer contracts concluded on or after 13 June 2014, revoking the current ‘distance selling’ and ‘doorstep selling’ regulations.

Various categories of goods and services, including contracts dealing with gambling and package holidays, are excluded from the scope of the Regulations. Other categories, such as prescription items and passenger transport are partially exempt.  Otherwise, the Regulations will apply to and distinguish between “On-premises contracts” (concluded at the seller’s business premises e.g. in a shop), “Off-premises contracts” (concluded away from the seller’s business premises where both parties are present e.g. when visiting homes), and “Distance contracts” (concluded where the parties are not physically together e.g. online) as outlined below.

Information

Sellers will be required to bring certain “pre-contract information”, such as delivery charges and the seller’s complaints policy, to a consumer’s attention before a contract is entered into. This obligation will be more onerous for off-premises and distance contracts, where the consumer must also be given a copy of the contract or confirmation in a “durable medium” allowing them to store and reproduce the information, such as paper or email, within a reasonable time and not later than the delivery of goods or commencement of services.

Order Process

In relation to distance contracts, it must be made clear to the consumer that an order confirmation will result in an obligation to pay.  For online sales, this will mean that any button the consumer clicks to show that they wish to enter into a contract must be labelled unambiguously to the effect of “order with an obligation to pay” or “pay now”; “continue” or “confirm” is unlikely to be sufficient.

Additional Payments

Consumers cannot be required to make payments in addition to the price agreed without “express consent”.  Pre-ticked boxes which bolt-on costs during the online order process, such as for an extended warranty, will be prohibited.  A pre-ticked box will still be allowed for free products and services, such as a newsletter.

Cancellation

For consumers entering into off-premises and distance contracts, their right to no-fault cancellation  (the “cooling-off period”) will be extended from seven to 14 calendar days from the date they received the goods or, for contracts for services or digital content, from the date the contract is concluded.  Cancelling the main contract will automatically terminate any supplemental agreements, such as insurance.

Under the Regulations, a seller can only start to provide services or digital content during the cooling-off period if a consumer makes an express request, and acknowledges that they will lose their right to cancel if the contract is fully performed, or once the supply of digital content has begun.

The Regulations include a model cancellation form which must be provided to consumers, and they also set out model instructions for cancellation, the insertion of which would ensure a contract complies with the cancellation provisions.

Failure to inform a consumer of their cancellation rights could result in the cooling-off period being extended by up to 12 months, during which time the consumer would not be obliged to pay for any services provided.

Refunds

Where a consumer elects to withdraw from the contract during the cooling-off period, they are entitled to be reimbursed for all payments including the costs of delivery.  The seller must also pay the costs of returning the goods unless otherwise specified in the contract.  Once goods have been returned, or proof of return provided, the seller will have 14 days (rather than 30) to reimburse the consumer.  Sellers are entitled to make a reduction for use beyond what is needed to check that goods are as the consumer expected.

Delivery

Where a contract is silent as to the time for delivery, the Regulations imply that delivery must occur without undue delay, and in any event within 30 days.  This is more stringent than the current requirement of delivery within a “reasonable time”.

Telephone Lines

Telephone helplines operated for use by consumers with contract queries must not be charged at more than basic rate.

Conclusion

All sellers dealing with consumers are likely to need to update their terms and conditions and ordering processes in order to implement the Regulations, and failure to do so by the 13 June 2014 deadline could result exposure to significant costs.

Data Protection Reform Update

In January 2012, the European Commission proposed a major reform of the EU legislation regarding the protection of personal data. The aim of the new proposals was to update the current Data Protection Directive (95/46/EU) passed in 1995 in order to provide a higher level of protection over EU citizens’ personal data. It is also meant to consolidate and harmonise data protection laws across all EU member states. Another key objective of the proposals is to ensure that the revised law addresses the recent developments in technology to cover progressions in e-commerce, social networking, and cloud computing. In terms of compliance, the new regulation is set to be stricter than the previous law with harsher enforcement and penalties. As the draft regulation will be directly effective in member states, there will not be a need for local legislation to implement it.

 Key provisions of the Regulation 

  • Most businesses (including public sector bodies, private sector businesses with over 250 employees, and businesses that demand regular data monitoring) will be required to appoint or designate a data protection officer to ensure that data controllers and processors fulfil their duties, and monitor the implementation of policies. 
  • Companies will have to be more transparent about what they require data for. They can only collect the minimum amount of data that they require for a specified intention. 
  • Data subjects should have the right to ‘erase’ their personal data through a ‘right to be forgotten’. 
  • The activities of data processors will also be brought within the scope of the draft regulation. Previously, the Directive applied only to the data processing activities of data controllers. Furthermore, the regulation will also apply to data controllers who offer goods or services to data subjects in the EU, but who are not themselves established in the EU. 
  • Both data processors and data controllers will be required to implement security measures to strengthen online privacy. 
  • Data controllers will be obliged to inform the relevant national data protection authority of a data security breach within 24 hours of becoming aware of the breach.

 Although the regulation cannot enforce criminal sanctions, there will be more significant consequences of breaching the draft regulation. This will include fines of up to 2% of a business’ annual turnover for intentional or negligent breaches.

 According to the current timescales, the draft regulation is to be implemented before the European Parliament elections in May 2014, but is not likely to apply to the UK until 2016 at the earliest. Despite this, businesses should continue to keep informed about the proposed changes to ensure they are in a position to fulfil the requirements and comply with the key provisions when the time comes.

The Advertising Standards Authority’s ‘Big 5’

Copyright - Advertising Standards Agency

Copyright – Advertising Standards Authority

The Advertising Standards Authority (ASA) has published its 2012 Annual Report outlining its activities over the past year and its focus going forward.

At the heart of the report, the ASA sets out the ‘Big 5’ priorities on which it intends to focus over the coming year, all of which concern misleading advertising in one form or another. The focus on misleading advertising is not surprising given that approximately 70% of all the cases which the ASA dealt with in 2012 concerned misleading advertising.

The ‘Big 5’ concerns are:

1. Free trials

Many online businesses are picking up on the practice of luring customers into signing up to a (usually one month) free trial which, if the customer does not cancel, automatically becomes a monthly service.

ASA made it clear that they are alert to this practice, however, they did not say what action they are taking against it. Their recommendation is for consumers to read all small print carefully before handing over payment. Therefore, businesses should be weary when employing this type of sales technique and note that it is best practice to clearly bring your terms and conditions of sale to the buyer’s attention prior to them signing up to the free trial.

2. Daily deals

Daily deal websites are becoming more and more popular amongst the last-minute shopper. Websites and apps such as Groupon all offer last-minute deals to the impulsive shopper. However, ASA has reported that there are “widespread problems” such as:

• failing to conduct promotions fairly;

• not making clear significant terms and conditions;

• failing to provide evidence that offers were available; and

• making exaggerated savings claims.

ASA explains in its report that it has advised businesses on improving their internal processes and that it has received fewer complaints as a result. It would therefore be wise for businesses seeking to use daily deals as part of a marketing campaign to take note of the problems the ASA has highlighted above.

3. Misleading pricing

ASA has picked up on the selling of products using techniques such as ‘bait-pricing’, ‘drip-pricing’ and ‘partition pricing’ structures where subsequent charges are added to the original advertised price at later stages of the transaction.

An example they provide is the hotel that doesn’t include VAT in its room price. This is an obvious additional costs that is payable by all consumers.

Therefore, businesses are advised to be careful when using these methods as the ASA is making it clear that it will be monitoring them closely.

4. Misleading testimonials

ASA has requested that companies provide proof that the testimonials posted on their websites are genuine. Therefore, it is good practice to retain documentary evidence in relation to the source of any testimonials posted on your website.

Also considered misleading by ASA were the tweets of Wayne Rooney and Jack Wilshere:

The tweet from Wayne Rooney stated “My resolution – to start the year as a champion, and finish it as a champion…#makeitcount gonike.me/makeitcount”.

The tweet from Jack Wilshere stated “In 2012, I will come back for my club – and be ready for my country. #makeitcount.gonike.me/makeitcount”.

They held that these were misleading insofar as readers were misled into believing that the tweets were from the footballers and not sponsored tweets and that there was nothing obvious in the tweets to indicate that they were Nike marketing communications. ASA indicated that by using #ad in the post the tweets would not have breached the Committee of Advertising Practice (CAP) Code.

5. Misleading health claims

If you are marketing a health product the ASA has made it clear that you must have evidence to back up any health improvement claims that you suggest the product features.

Handle with care…

The use of some of these advertising techniques is clearly of interest to businesses and marketers looking to advertise in fresh and different ways. The key for businesses to be sure that any such advertising is fair and honest and does not mislead the customer. The ASA is clearly keeping a watchful eye on these 5 areas of concern and therefore it is prudent for businesses to err on the side of caution when implementing any such marketing tools.

ICO publishes data protection guidance for BYOD

Photo: chinnian.

Image credit: chinnian.

The Information Commission Office (ICO) has recently published guidance for companies to help them avoid potential breaches of data protection laws when encouraging staff to use their personal laptops, tablet computers or smartphones for business purposes, a practice known as ‘bring your own device’ (BYOD).

A recent survey, commissioned by the ICO and carried out by YouGov, revealed that 47% of all UK adults now use their personal smartphone, laptop or tablet computer for work purposes. But fewer than 3 in 10 who do so are provided with guidance on how their devices should be used in this capacity, raising worrying concerns that people may not understand how to look after the personal information accessed and stored on these devices.

The benefits of BYOD include employee satisfaction from being able to use devices of their choice, increased productivity particularly when out of the office and cost saving as a result of the decreased overheads for hardware. However, there are also risks associated with BYOD, one of the key ones being security.

The ICO’s guidance outlines some of the risks which businesses should consider when allowing personal devices to be used for work-related purposes and guidance explains how BYOD can be adopted in a manner that complies with the Data Protection Act 1998 (DPA).

Under the DPA, there are 8 principles of ‘good information handling’. As well as protecting individuals who are the subjects of this information, it imposes obligations upon those processing the information. Of most relevance is the seventh principle of maintaining ‘appropriate technical and organisational measures…[to protect] against accidental loss or destruction of, or damage to, personal data’.

The ICO’s guidance recommends a number of security measures which employers should put in place to avoid breaching their data protection obligations, these include:

  • auditing the types of personal data being processed and the devices used to access that data;
  • denying or restricting access to sensitive data on devices which lack a high level of encryption; and
  • controlling access to data and/or devices using passwords or PIN codes.

The guidance also explains how businesses should have remote locate and wipe facilities in place to maintain the confidentiality of data in the event of loss or theft and should, where possible, avoid the use of public cloud-based sharing and public backup services if the services have not been fully assessed.

Although implementing these controls will not be free of cost, the potential fines and reputational damage which could arise as a result of non-compliance with data protection legislation and the financial benefits of BYOD could far exceed the costs of putting in place appropriate security measures.

As data controllers, employers must ensure that all personal data is processed in accordance with the requirements of the DPA. The ICO’s guidance represents a useful tool for employers currently using or considering BYOD initiatives to ensure that they remain compliant with the DPA.

A copy of the ICO’s guidance is available here.

Twitter Joke Trial: what is a “menacing” communication?

Image © John Allan – click image for further details

Paul Chambers’ two-and-a-half year battle to clear his name in the “Twitter joke trial” has ended with his acquittal in the Court of Appeal.

The Court of Appeal judgment is already available here. The key basis for the decision is that Paul Chambers’ tweet “lacked menacing character”, as required under s.127(1) Communications Act 2003 (the legislation under which Mr Chambers was prosecuted). Once that was established, there was little need to consider whether Mr Chambers had had a criminal motive in posting the tweet – though it’s pretty clear what the court thought on that issue anyway.

Some key points made in the judgment. First, the court insisted that the 2003 Act is not intended to interfere “with the first of President Roosevelt’s essential freedoms – freedom of speech and expression”:

Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. (para 28)

If a message tips over from being “distasteful” into being “menacing” then an offence may be committed. However, this raises the question of what constitutes a “menacing” message. In particular, if the message does not “create a sense of apprehension or fear in the person who receives or reads it” then “it is difficult to see how it can sensibly be described as a message of a menacing character”:

So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace. (para 30)

In making this assessment, it is necessary to look not only at its “precise terms” and “any inferences to be drawn from its precise terms”, but to look also at “the context in and the means by which the message was sent” (para 31). In the case of Mr Chambers’ tweet, “the language and punctuation are inconsistent with the writer intending it to be or to be taken as a serious warning”.

The court also considered it highly relevant that none of those who first encountered the message – Mr Chambers’ followers on Twitter, those responsible for security at Doncaster airport, South Yorkshire Police – had acted in a way which suggested urgent concern over what Mr Chambers had said. The prosecuting authorities and the previous courts had instead placed too much emphasis on how Mr Chambers’ message might have been understood by hypothetical readers “who might lack reasonable fortitude”.

All this led inevitably to the conclusion that:

on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed. (para 34)

What this decision demonstrates is that even a 140-character tweet has to be read in its context – a principle that has also been followed in non-judicial contexts, such as the Advertising Standards Authority’s sponsored tweets decision earlier this year. What matters is not how some hypothetical reader lacking “reasonable fortitude” might read the message, but whether it actually creates “fear or apprehension” in those to whom it is in fact communicated.

In short, the Court of Appeal seems to have drawn a helpful clarifying line between “outspoken” and “menacing”, which hopefully will ensure continuing freedom of expression online while still protecting people from genuinely menacing behaviour.

ASA uses its power to ban a Twitter campaign for the first time

Speaking at the Cannes Lions Festival of Creativity on 19 June, Coca Cola’s most senior marketer Joseph Tripodi called on marketers to take a “leap of faith” and embrace social media as a brand building tool. However, as Nike discovered the very next day, advertising using social media is not free from constraints.

Since 1 March 2011 the Advertising Standards Authority (ASA) has had the power to oversee businesses’ marketing communications on their own websites, as well as on social networking sites and other “non-paid-for” space online, to ensure that they comply with the CAP (Committee of Advertising Practice) Code.

The first major case that forced the ASA to look at advertising on social media came to light earlier this year when it launched an investigation into tweets by celebrities such as Katie Price and Rio Ferdinand promoting Snickers. The campaign involved celebrities posting a string of bizarre tweets ending with “You’re not you when you’re hungry@snickersUk#hungry#spon” and a picture of them holding a Snickers. The ASA ultimately dismissed the complaints against Mars finding that the inclusion of the #spon hashtag in the final “reveal tweets” made them clearly identifiable as marketing communications.

There has since been a noticeable increase in the number of sponsored tweets or “tweeting for money” and this looks set to continue. However, in the first case of its kind, the ASA has taken action to “ban” a campaign which features them. As part of its “Make it Count” campaign, Nike UK used the personal Twitter account of footballer Wayne Rooney to post the following tweet:

Nike posted a similar tweet on the account (subsequently deleted for unconnected reasons) of Arsenal footballer Jack Wilshere:

Jack Wilshere – “In 2012, I will come back for my club – and be ready for my country. #makeitcount gonike.me/Makeitcount”.

Responding to a complaint that the tweets were not clearly identified as advertising, Nike claimed that both footballers were well known for being sponsored by Nike and argued that Twitter users would not be misled about its relationship with the players. Nike took the view that the presence of the Nike URL and campaign strap line #makeitcount within the body of the tweets, indicated that the purpose of the tweets was to direct followers to the Nike website and made it sufficiently clear that the tweets were advertising.

The ASA disagreed, finding that the reference to Nike was not prominent and could be missed, making the tweets not obviously identifiable as advertising and putting them in breach of the CAP Code. The ASA held that as not all Twitter users would know about the players’ sponsorship deals with Nike, the tweets should have featured an indication hashtag, such as #ad or #spon, to make it clear that they were marketing communications.

Just the one complaint?

It is interesting to note that the Nike campaign was banned by the ASA despite only receiving one complaint. To coincide with its 50th anniversary, the ASA has recently released a list of the most complained-about ads of all time.

Top of the list was a TV advert for Kentucky Fried Chicken which aired in 2005 and featured call centre workers singing with their mouths full of food. The ad received a record 1,671 complaints with many people considering that it could encourage bad manners among children. However, despite the record number of complainers, the complaint was not upheld by the ASA, which ruled that the ad was unlikely to change children’s behaviour or undermine parental authority.

The other ads to make the top 10 were:

2. Auction World (2004): Shopping channel – 1,360 complaints – referred to Ofcom

3. Paddy Power (2010): Cat being kicked by blind football player – 1,313 complaints – not upheld

4. The Christian Party (2009): Poster saying “There definitely is a god” – 1,204 complaints – not upheld

5. British Safety Council (1995): Condom advert featuring Pope – 1,192 complaints – upheld

6. Marie Stopes International (2010): TV ad offering sexual and reproductive healthcare advice –  1,088 complaints – not upheld

7. Volkswagen (2008): Depicted an engineer fighting multiple versions of himself – 1,070 complaints – partially upheld

8. Yves St Laurent (2000): Poster of naked reclining Sophie Dahl – 948 complaints – upheld

9. Department of Energy and Climate Change (2010): Press and TV campaign about climate change – 939 complaints – upheld in part

10. Barnardo’s (2008): TV campaign about domestic child abuse – 840 complaints – not upheld.

Olympic advertising divide?

I’ve discussed before both here and elsewhere the  rules on advertising around Olympic and Paralympic venues later this year.

However, other rules on advertising will have an even more widespread effect, in particular the ban on all forms of “association” of brands with the London Olympics – even if the “association” is done indirectly, through the use of phrases such as “Summer 2012″.

I’ve written an article for the Guardian Media Network on this issue, which is available here: 2012 Olympics: advertisers beware overstepping the line.

Breaching advertising guidelines? You’re not when you’re #spon

A marketing campaign by confectionary giant Mars has been cleared by the Advertising Standards Authority (ASA) in its first investigation involving social networking site Twitter.

The ASA launched its investigation after receiving complaints regarding a chain of bizarre economy and knitting-related tweets sent in January from the official accounts of the footballer Rio Ferdinand and model Katie Price followed by a final Snickers tweet and a photograph.

On January 24 the Manchester United defender tweeted “Really getting into the knitting!!! Helps me relax after high-pressure world of the Premiership”.  In further postings, he added “Can’t wait 2 get home from training and finish that cardigan”; “Just popping out 2 get more wool!!!”; “Cardy finished. Now 4 the matching mittens!!!”

His fifth tweet read “You’re not you when you’re hungry @snickersUk #hungry #spon”.

In Price’s tweets she wrote about subjects such as the eurozone debt crisis, China’s GDP figures and the economic concept of quantitative easing before finally tweeting a picture of herself holding a Snickers bar with the same message as Ferdiand’s “You’re not you when you’re hungry @snickersUk #hungry #spon”.

In making its decision, the ASA considered two points: (a) whether it should have been stated in the first four ‘teaser’ tweets that they were marketing communications and (b) whether the hashtag “#spon” in the final ‘reveal’ tweet made it clear enough that that tweet was a marketing communication.

Responding to the complaints, Mars said that it had “considered in detail” the extent to which the tweets were marketing communications and believed only the last one needed to be identified. Mars argued consumers could not have been misled into making a purchase by the first four tweets as their meaning only became apparent once the campaign was revealed with the fifth message.

The ASA accepted Mars’ argument that the tweets contained the hashtag “#spon” to indicate sponsored content but it disagreed with Mars that the first four only became marketing communications after the final tweet was posted and stated that all five tweets should be considered to be part of an “orchestrated advertising campaign”.

However, the ASA said the final tweet was clearly highlighted as an advertising campaign and that having seen the final ‘reveal’ tweet consumers would understand that the series of tweets were part of a marketing communication. It held that it was acceptable that the first four tweets were not individually labelled as being part of the overall marketing communication and concluded that the ads did not breach the CAP code.

This investigation highlights the importance of disclosing paid-for promotions in all forms of advertising media including blogs, posts and microblogs like Twitter. Whether this is by using hashtags such as #spon, #paid-promotion or #advert or some other statement, in order to avoid breaching advertising legislation, promoters should ensure that consumers understand when they are reading paid-for promotional content regardless of the media through which that content is being displayed.

Talking Olympic advertising

In a recent post, I discussed the laws prohibiting advertising activity round Olympic venues in the summer.

One of the affected venues is the Ricoh Arena in Coventry, which will be renamed the City of Coventry Stadium for use in Olympic football matches. Shane O’Connor from BBC Radio Coventry & Warwickshire interviewed me at 7.40 this morning to talk about the law behind these advertising restrictions. Here’s a recording of our conversation: