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Handpicked media - questions and answers

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1. Is this a new law for bloggers and tweeters?

No. The OFT took this enforcement action in December 2010 - see press release OFT secures promotional blogging disclosures (13 December 2010) - under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). The OFT is the national enforcer of the CPRs. In this case we have applied the provisions of the CPRs to certain online promotional activity.

Under the CPRs, it is prohibited to use editorial content in the media to promote a product, where the trader has paid for the promotion, without making that clear in the content. It is also prohibited to mislead consumers by act or omission (for example in relation to any endorsement of the product), where this is likely to have an impact on the consumer's decision making about the product. These rules apply to any trader involved in the promotion, sale or supply of products to or from consumers.

These rules apply irrespective of whether the activity is offline (for example, promotional activity in newspapers and magazines) or online (such as websites and social networks). The action taken in December 2010  is the first time we have applied these provisions to this sort of online activity.

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2. Does this mean the OFT will be monitoring the whole of the internet?

We are not monitoring the whole of the internet with a view to going after individual bloggers.

The action taken in December 2010 provides clarity and certainty to companies, their marketing departments and advertising agencies on the disclosure requirements that apply in this area, consistent with the CPRs.

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3. Will you be taking action against other bloggers or PR agencies?

We can't comment on any future action that may or may not be taken. We consider each issue on a case by case basis in accordance with our prioritisation principles.

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4. Why have you not taken action directly against the bloggers?

We consider the action that is most appropriate and proportionate in each case. In relation to our enforcement action in December 2010, we considered it most appropriate and proportionate to take enforcement action against a company who operates a network of commercial bloggers, rather than the bloggers themselves.

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5. What about celebrity endorsements on Twitter and Facebook - do you expect bloggers and celebrities to adopt the same disclosure approach as they do in the USA?

The underlying principle is the same - consumers should understand when they are reading paid-for promotional content.

In practice we would expect there to be a degree of harmonisation in relation to how sponsored posts are disclosed on microblogs such as Twitter.

The OFT has an existing relationship (including a memorandum of understanding) with the Federal Trade Commission, the agency that enforces the equivalent rules in the US.

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6. Is this a change in direction for the OFT to focus on online activity?

The OFT's internet consumer protection team was established in October 2009 and investigates unfair online trading practices that pose a threat to consumer confidence in online markets. This work is an important part of the OFT's goal to protect consumers and promote competition and economic growth.

There are a wide variety of online threats to consumers and it's obviously not possible for us to investigate them all. Consistent with our approach to consumer enforcement generally, we aim to ensure that our online interventions deliver high impact results, for example by changing behaviour across a market, clarifying laws or providing an effective level of deterrence to those who flout their legal obligations. This means that we do not take every case, but we try to target our resources where we can have most impact, bearing in mind the overall limit on our resources.

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7. Has the OFT been getting complaints about deceptive blogs?

We have received representations on this issue when consulting on the scope of our recent Advertising and Pricing market study work.

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8. Is there special language you require to make the disclosure?

It is not for the OFT to specify the particular language to be used by traders in any given case to ensure that relevant commercial practices are compliant with the CPRs. However, disclosures should clearly identify, in a manner prominently displayed with the editorial content such that it would be unavoidable to the average consumer, that the promotion has been paid for or otherwise remunerated.

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9. What about a platform like Twitter? How can I make a disclosure when my message is limited to 140 characters?

The general principle regarding disclosure applies. It is possible to use a hashtag that clearly indicates that a Tweet is a promotional activity.

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10. Why are you taking this action and not the Advertising Standards Authority (ASA)?

From 1 March 2011, the ASA's digital remit will include advertisers' own marketing communications on their own websites and marketing communications in other non-paid-for space under their control, such as social networking sites like Facebook and Twitter. The OFT has regard to the role of the ASA when considering whether to open an enforcement case, but we also act as the ASA's legal backstop for non-broadcast advertising and we may decide to initiate statutory interventions against advertisers also in circumstances when they fail to co-operate with the self-regulatory system.




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