UK: New Ofcom Guidance On The Use Of Tweets In Advertising

Last Updated: 5 November 2012
Article by Susan Barty and Stuart Helmer

In its latest Broadcast Bulletin, Ofcom has resolved a complaint against Channel 4 relating to an advertisement for a film which invited viewers to send in Tweets on what they thought of the film, and then broadcast the positive Tweets from viewers in a subsequent advert.  The complaint alleged that the broadcast confused viewers as to whether they were watching an impartial continuity announcement or a paid advertisement.  Although Ofcom considered that there were several aspects of the material that would give rise to confusion as to the nature of the piece, they determined the matter to be resolved as Channel 4 had introduced subsequent policy changes to ensure that similar confusion did not occur again.

To view the article in full, please see below:

Full Article

In its latest Broadcast Bulletin, Ofcom has resolved a complaint against Channel 4 relating to an advertisement for a film which invited viewers to send in Tweets on what they thought of the film, and then broadcast the positive Tweets from viewers in a subsequent advert.  The complaint alleged that the broadcast confused viewers as to whether they were watching an impartial continuity announcement or a paid advertisement.  Although Ofcom considered that there were several aspects of the material that would give rise to confusion as to the nature of the piece, they determined the matter to be resolved as Channel 4 had introduced subsequent policy changes to ensure that similar confusion did not occur again.


During an episode of Homeland aired on Channel 4 in April 2012, Channel 4 broadcast content about the film Prometheus in two of the advertising breaks.  The first showed a full-screen Channel 4 logo, as the continuity announcer introduced the trailer for the film Prometheus and invited viewers to send in Tweets expressing their opinion using the hashtag #areyouseeingthis.  The trailer was then shown.  The next advertising break featured a number of these viewer Tweets on screen, all of which expressed a positive view of the film, including "Prometheus is shaping up to be the best film of the year", and "Awesome cast, fantastic director.  Can't wait".  The Channel 4 announcer then stated, "Ridley Scott is back to the genre he defined and we are massively excited about it.  Prometheus in cinemas June 1st.  Book your tickets now".


A viewer complained to Ofcom that the content "totally confuses the viewer about whether they are watching an impartial continuity announcement or a paid advertisement".

The Audiovisual Media Services Directive requires advertising to be readily recognisable and distinguishable from editorial content (Article 19).  Rule 11 of the Code of Scheduling of Television Advertising (COSTA) states:

"Broadcasters must ensure that television advertising and teleshopping is readily recognisable and distinguishable from editorial content and kept distinct from other parts of the programme service.  This shall be done by optical (including spatial) means; acoustic signals may also be used as well."

This is reflected in further provisions in the Ofcom Broadcasting Code and the Broadcast Committee of Advertising Practice (BCAP) Code of Broadcast Advertising, with the BCAP Code stating explicitly that "the audience should quickly recognise the message as an advertisement" (rule 2.1).

Ofcom investigated the complaint under Rule 11 of COSTA, and requested a response from Channel 4 indicating how the material was in compliance with this rule.


Ofcom noted that Channel 4 had deliberately inserted a black screen broadcast immediately after the programme followed by a Channel 4 ident with a white background and the word "Homeland", to show viewers that the programme part had ended and indicate the start of the advertising break.  Ofcom considered that viewers would be unlikely to doubt that the programme had been interrupted for a break.

However, Ofcom stated that the style of presentation of the Prometheus material had risked confusing viewers as to its nature.  Simply inserting material in a break between programmes is not sufficient to identify it as advertising – breaks often contain non-advertising content such as programme trailers or news updates.  Ofcom considered that although the first advertisement contained aspects that would normally be recognisable as advertising, such as the film trailer and release date, they were accompanied by other elements that are more usually associated with editorial content, such as the use of the channel's logo, the voice of the channel's continuity announcer, and use of language that suggested endorsement and ownership of the material, such as "we bring you a worldwide exclusive" and "we'd love to know what you think".

Ofcom also took into account the fact that the Tweets that were displayed in the second advert all expressed a positive view of the film, and considered that viewers may have been confused as to whether they were viewing a selection of Tweets selected by Channel 4 for editorial reasons or for advertising purposes.

In its response Channel 4 had submitted that it was not in breach of COSTA or the BCAP Code, and stated that both advertisements had been cleared in advance by Clearcast, the broadcasting industry body that assesses television adverts on behalf of broadcasters before transmission.  However, in spite of this, Channel 4 also set out a number of policy changes it had subsequently introduced to prevent any similar issues of confusion from occurring again.  These changes included featuring text at the start of any similar advertisements stating that it is an advertisement, which is no longer an express requirement since the BCAP Code was revised in 2010 (though advertisers remain obliged to distinguish clearly between editorial content and advertising), and ensuring that any Channel 4 announcer featuring on the voiceover for the advert is not working on that channel on that day, to help prevent any confusion.

Ofcom stated that, although it was concerned about the extent to which the material was recognisable as advertising, in light of the changes introduced by Channel 4, and in particular the decision to include text clearly marking the material as advertising, Ofcom considered the matter to be resolved.


Soliciting viewer feedback via social media, and then using the messages submitted, is now a well-established practice in programming.  However, it is now also becoming increasingly common in advertising.  Ofcom clearly considers that it carries with it the risk of a blurring between editorial and advertising resulting in consumers being unsure of the manner in which the user-generated content is being used.  This is illegal under the Consumer Protection from Unfair Trading Regulations, which bans the promotion of products by way of the use of paid-for editorial content without making it clear to consumers that the content is advertising.  It is also in breach of various codes of practice.

In this case Ofcom was satisfied that the precautionary steps now introduced by Channel 4 will avoid consumers being misled by the content.  Advertisers seeking to use user-generated content in this way would be well advised to adopt the same principles.  Advertisers should also be aware that content solicited and re-used in this way could be regarded as misleading if they cherry pick positive responses and ignore negative ones; and that the fact that the content is user-generated does not mean that it falls outside the CAP and BCAP Codes.  Also, copyright is likely to subsist in user-generated content, and there is a risk of a copyright claim if the appropriate licence is not obtained.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 26/10/2012.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions