Sports apparel and equipment maker Nike has made a name for itself this week by becoming the first company to have a Twitter-based ad campaign banned.

The company has sponsored a couple of footballers, Man Utd’s Wayne Rooney and Arsenal’s Jack Wilshere, to post Nike related tweets on their personal accounts, driving users to the ‘Make it Count’ website.  The screenshot below shows an offending tweet:

The Advertising Standards Authority, the same chaps thought shots of Katie Price eating a Snickers bar were okay, believed the tweets were not explicitly identified as paid-for ads. Despite inclusion of the #makeitcount advertising slogan hashtag, and a clearly branded Nike URL, the tweets were deemed to breach ASA guidelines. The ASA also feels the sheer volume of tweets the average user scrolls through everyday meant the hashtag and URL could easily be missed.

ASA reps told The Guardian:

“We considered that the Nike reference was not prominent and could be missed. We considered there was nothing obvious in the tweets to indicate they were Nike marketing communications.”

“In the absence of such an indication, for example #ad, we considered the tweets were not obviously identifiable as Nike marketing communications and therefore concluded they breached the [advertising] code. The ads must no longer appear. We told Nike to ensure that its advertising was obviously identifiable as such.”

Nike argues it is well know both footballers are advertising spokespeople for their company and the inclusion of the #makeitcount hashtag means any football fans would make the link, and thus not be misled.

The legal world is lagging somewhat behind the digital age. As well as the overly-debated, under through Digital Economy Age, new precedents are being set by rulings in relation to social media on a regular basis. There’s much chin stroking, wig scratching and hasty gavel banging going on.

I’m not a huge football fan, and I knew Wayne is a footballer of such standing that he’d attract sponsorship from a leading sports company. I also own an old pair of Nike shorts and some bouncy air-filled trainers. So I’m pretty confident I could have deduced those tweets were ads, even with the quickest of glances before clicking.

In fact, the whole ‘you could easily miss the tag’ argument from the ASA is questionable. This may be true of the average tweet from someone you don’t pay much attention to, but if you’re following Wayne, chances are you’re a big ol’ fan and will hang on his every character.

Say, just for the sack of over-the-top, cuddly fluffy ad guidelines, a few fans did mis-read the tweet and click the link. The Nike landing page is quite clearly branded and obviously a marketing / promotions focused site. Is this one little click by a few fans really an issue? Chances are they’d be pleased to land there, on purpose or not. They might need some new shorts.

Moreover, the ASA’s proposed solution doesn’t add up. If a football fan can’t spot a well known advertising slogan in a hashtag, what are the chances they’ll spot #ad? And even if they do, instantly know what it means? Nah.

By comparison, the Snicker tweets deemed to be okay by the ASA included no reference to advertising at all in the initial ‘teaser’ tweets, and the second ‘reveal’ tweets only included a Snickers Twitter handle. No #ad. Check out the below screenshots from The Telegraph website:

So the ASA is okay with an @handle as an ad identifier, but not a well known slogan or branded URL. This is less a sensible, reasoned ruling and more of a splitting of hairs. Expect more to come from the legal types.

@simonhill