Guest article: James is a new editor to Digital Sport having just launched @FiftyDigital, a digital and social media agency specialising in sponsorship and sport. He was previously Head of Digital at Mercedes F1 Team and Williams F1. Say hello: james@fifty.digital 

Let’s talk about social media and content specifically. There are now thousands, if not millions of examples of brands using social to push content, tell a story, deliver a message, reach a new audience or change a perception through (or using) sport. Sometimes this is through owned platforms, but increasingly brands are using their sponsorship and agreements with individuals or rights holders to push the content for them.

It makes sense – individuals often have a rapport with fans and a big following and therefore can immediately entice people to look at what they share. Rights holders often hold the key to an audience of already engaged fans in the sport, guaranteeing a target audience that a brand may find it hard to otherwise tap into.

The result – brands utilise relationship with individual or rights holder to promote products or image. Individual/rights holder pushes content or messages out through their social channels that promote brand. This may be contractual, or maybe not. An individual may just feel it is their duty to talk about the brand online and make their own content up (dangerous). Or it may be ‘contractual’ to post 1 tweet per sporting event or per month about said brand (even more dangerous). Or it may be part of a wider campaign to create a range of carefully planned content that features the brand/individual (a lot better).

But how can this be monitored? When is an endorsement classed as an endorsement? When does #ad or #sponsored need to be applied? Does it even need to be applied? Who moderates this? How do some get punished for this and some don’t? Could it even be the case that it’s too hard to moderate and therefore there will be no rules in the future?

Investigation

I work in this industry, specifically focussing on digital in sport and have done a lot of work with clients and brand endorsements, yet it is still unclear what the ‘actual’ rules are. So I am seeking to find out (and hopefully help others in a similar boat).

Type in ‘social media advertising law’ into any search engine and you get a fair chunk of information. Mainly organisations with 3 or 4 letters;

ASA (Advertising Standards Authority – UK) + CAP Code within ASA

IAB (Internet Advertising Bureau – also UK)

FTC (Federal Trade Commission – US)

ACCC (Australian Competition and Consumer Commission – Australia).

There are more… CMA, ICO… the list goes on.

So which one applies to me? Is what I am sharing an ‘advertisement’ or is it just an ‘endorsement’? If I use Twitter in the UK, is that bound by the ASA or IAB? But it’s an American company, so is it bound by rules in the US?

The best source of information found to date is a rather extensive Q&A with the FTC here. It states that:

Suppose you meet someone who tells you about a great new product. She tells you it performs wonderfully and offers fantastic new features that nobody else has. Would that recommendation factor into your decision to buy the product? Probably.

Now suppose the person works for the company that sells the product – or has been paid by the company to tout the product. Would you want to know that when you’re evaluating the endorser’s glowing recommendation? You bet. That common-sense premise is at the heart of the Federal Trade Commission’s (FTC) Endorsement Guides.

It is a very long article, so to save some time, the general premise is ‘err on the side of caution’ i.e. state when there is a payment or known endorsement involved. All fair enough – adding a disclaimer that you are being paid to promote the product or that you are connected to X brand because of Y.

The problem is, there is a very fine line between what is ‘assumed’ and what is not assumed. For example, a Formula One Team might share some content for one of it’s sponsors on their own social channels. If the name of that sponsor is on the car and obviously connected to the team, is that enough of an assumption to not add ‘this brand pays us money to promote them’.

Similarly, with athletes, if an individual is being paid to promote a product or brand, how far into that contract does it need to go before it is declared as an ‘advertisement’ or official endorsement? For example, what if a high profile brand sponsors a high profile athlete with millions of Twitter followers. That athlete has no mention of social media promotion in their contract, but it is verbally agreed that the athlete will post pictures of themselves in natural scenarios wearing that brands products or using their services. How can that be monitored and does that then bypass the FTC regulations?

No one really wants to put #ad in a post on social media – it’s like a warning sign for an audience to not engage with the content. People get put off by it and find it a bit cringe worthy – possibly knowing that there is money involved or that it’s not genuine, which goes completely against what social media is all about in the first place.

Is it enough therefore to just explain the endorsement or association in some way? By keeping the content genuine and making a reference to the brand? Let’s take a look at some examples…

Examples

The confusion arises because of a lack of consistency over what does and does not constitute an endorsement and when someone might get a slap on the wrist for this.

We recently saw a great piece of content by @MesutOzil1088

I’m back!! See you tomorrow on the field! ????????⚽???? #BeTheDifference #ACE16 #AFCvCFC #COYG @adidasfootball pic.twitter.com/GfTIj4Pzcy

— Mesut Özil (@MesutOzil1088) January 23, 2016

– very clearly an Adidas campaign, incorporating their handle @adidasfootball and the hashtag #BeTheDifference (which he actually uses in a lot of tweets).

It’s great to see this kind of content – using a content bank (possibly created pre-season) with a non-team sponsor (Arsenal are sponsored by Puma) utilising their relationship with the player to promote an up-coming game. But is this an endorsement? Is it a contractual benefit to Adidas for Mesut Özil to push this content out for them? Who would tell him off?

It’s also just content – Mesut isn’t saying ‘go out and buy these boots’ nor is he saying ‘I love these boots’, it’s just a cool piece of content with no opinion attached (and it’s quite clear that the audience understands the relationship between Mesut and Adidas – therefore in the words of the FTC, ‘If the audience understands the relationship, a disclosure isn’t needed’). No #ad needed here then seemingly.

What about Wayne Rooney – this example is often used in legal / social media / brand ‘how not to’ sessions as it’s very obviously not ‘Wayne Rooney speak’:

My resolution – to start the year as a champion, and finish it as a champion… #makeitcount http://t.co/JD6HUzbJ

— Wayne Rooney (@WayneRooney) January 1, 2012

At the time, the ASA ruled ‘the tweets were not obviously identifiable as marketing on behalf of Nike and therefore breached the code’. The punishment: Wayne was banned from repeating the messages in their current form and Nike has been warned about ensuring all Twitter advertising is easily identifiable. This was back in 2012.

Another example from @WayneRooney in 2013 did not breach the code and he got away with it, arguing that the use of the hashtag and @NikeFootball handle showed that ‘the tweet was obviously identifiable as a Nike marketing communication’:

The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1

— Wayne Rooney (@WayneRooney) April 7, 2013

Good to establish how to get away with it, but the two tweets are not actually that much different. Both are very clearly marketing communication in one way or another – Wayne Rooney doesn’t normally speak like that. Is that engaging for a user? Are they going to relate to that content and say ‘I want to own the turf’? Is there a better way?

As another alternative, we saw this tweet from @WayneRooney in 2015

Finally got out for a game of golf today and tested my new @nikegolf driver. It’s the best one yet! ⛳️ pic.twitter.com/WBQ52HwhYF

— Wayne Rooney (@WayneRooney) March 18, 2015

We would say this does more for Nike’s marketing purposes than either of the previous two – it’s more authentic (slightly grainy image, pushed out live or close to live), written in Wayne’s style, tagging their accounts, talking about products but not overly pushing them, wearing branded clothing and even using emoji’s. Emoji’s are definitely not the answer to avoiding commercial speak, but it certainly endears the person and makes the content more relatable.

Was that tweet written into Wayne’s contract to push out? We’d be surprised if so. Was it just good content for both him and the brand? Absolutely yes. It could therefore be argued that brands should be looking down this route to find these genuine stories and messages and push them out in a way that avoids a slap on the wrist from the powers that be, but pushes key content messages out in an engaging, relatable way.

In contrast, let’s take a look at some content we saw recently with @CapitalOneUK and @RBarkley20:

Watch @RBarkley20’s journey to realising his dream. #thedifference is the right support. pic.twitter.com/nAFCjBMOC6

— Capital One (@CapitalOneUK) January 26, 2016

There was clearly a decent production budget as it’s very well produced (we’ll excuse the make up in the shots at the end!) and seemed to have a good media spend behind it, always popping up as promoted posts. It even included some #spon from the player himself

No one achieves their dreams alone. Thanks for the vid @CapitalOneUK #TheDifference is the right support. #Spon… https://t.co/pbi2inH21o

— Ross Barkley (@RBarkley20) February 2, 2016

If there was ever an example of how to cover all bases with regards to careful branding (i.e. not showing any in the video itself) and making sure the players endorsement is carefully covered with #spon, it’s right here.

Good content, great production, decent media spend and a strong message behind it. Kudos to the team at @CapitalOneUK, making the most of their assets and pushing content through social. It would be interesting to know if it delivers the returns they want. Is it easily recognisable as a branded message? Yes. Does that matter? In this case, it is good content so the messaging gets through. In other cases, more genuine content that may navigate away from the #ad/#spon style and more into the ‘hidden’ endorsement might be the way to go.

Taking another example (this time away from football), in 2015, MERCEDES AMG PETRONAS F1 Team engaged in a series of content with Bose to look at the ‘Sounds of…[topic related to Formula One]’

[youtube]https://www.youtube.com/watch?v=K6dg0XxNyjY[/youtube]

This was a great showcase in how to bring the key elements of two companies together, allowing the rights holder to offer content to the brand through their sponsorship.

The content was interesting, relevant, relatively low-budget to create and ultimately proved to be effective marketing communication for both sides. Whether this was written into a sponsorship contract or not, if a brand is creating great content like this, a rights holder or an individual will naturally be more inclined to share it on their social channels – a win-win for any sponsoring relationship (great content/better engagement for owned channels vs. more visibility/targeted audience for sponsor).

Good content – yes. Authentic and engaging for the audience – yes. Does it fall foul of any of the advertising / endorsement regulations – we don’t think so. The relationship between Bose and Mercedes F1 Team is clearly stated. A good combination.

Do #ads work?

We’ve seen examples where #ad should have been used, examples where #ad or #spon has been used and examples where there have been neat workarounds applied.

It’s clear that marketing through social media is going to get bigger and bigger. The topic of ‘how to monetise digital’ is huge – everyone asks the question, yet no-one has a concrete answer yet (possibly owing to the even bigger ‘value’ question).

Brands will keep exploring the best ways they can get their message across (and so they should), individuals will look to improve their commercial offering by seeking to offer their social channels or time for content as assets (and so they should too, within reason!) and rights holders will keep developing ‘digital rights’ to allow brands to communicate effectively through their sponsored property.

The best content will be the most genuine and authentic. The content that tells stories but is shareable. You only need to look at the rise of the likes of ‘The Lad Bible’ and ‘Joe’ on Facebook to see how many views their short, humorous and current videos get to see how the world is consuming content.

Should it therefore be the case that brands are looking to sponsor existing assets than create their own? This remains to be seen.

What are the rules? 

There is a definite difference between an ‘advertisement’ and an ‘endorsement’. Although both are covered in the FTC rules, there is little that can be done to detect well placed endorsements.

If there is no obvious connection between the brand and individual (e.g. Ross Barkley and Capital One), the best course of action may be to make use of #ad, especially if there are contractual terms to promote through social.

However, if there are perhaps more obvious connections (e.g. Wayne Rooney and Nike) where it could be argued that Wayne may use or buy Nike products anyway, there could be ways to create content through social media that feels genuine, is interesting for the end user and promotes the brand in a way that no other medium can.

The future

Measurement, valuation and digital rights are very much in their infancy in this respect. The sponsorship and social media model are both constantly changing, but it feels like the two roads are coming together now and we will see more and more case examples. Sponsorship in the traditional sense is therefore coming to an end; a logo on a sponsored property measured only through TV figures is no longer enough – the future is digital. How brands, individuals and rights holders use this to their advantage will be key to unlocking revenue, reach and ultimately return on investment.