Extended remit

From 1 March 2011 the CAP Code which regulates advertising in the UK will also apply to advertisements and other marketing communications by businesses on their own websites and on other non-paid-for space under their control. Facebook pages and Twitter accounts set up by the company to generate publicity or elicit public opinion and comment will both now fall within these regulations. The CAP Code is part of the self-regulatory system under which complaints can be made to the Advertising Standards Authority (“ASA”).  

Background  

In February 2010, the Conservative Party manifesto pledged to “tackle currently unregulated marketing on corporate websites targeted at children” and “to shut the regulatory loophole and clamp down on irresponsible online marketing targeted at children”. In light of this and the rapidly changing nature of marketing in the digital space, the ASA and the Committee for Advertising Practice conducted a review of the remit of the Code.  

The Code has been in place for nearly 50 years, and had only occasionally been updated to take into account new technologies. In the past the ASA rejected around 3,500 public complaints about the content of company websites because they fell outside the remit of the Code, whereas paid-for digital ads such as pop-ups and banners fell within it. Ultimately, the goal of the ASA is to take every step possible to prevent consumers from being misled or from suffering detriment as a direct result of irresponsible marketing communications. The changes detailed below apply to all sectors and all businesses and organisations in the UK.  

Exclusions  

Marketing communications promoting causes or ideas will fall outside the new remit (unless the promotion consists of a direct request for charitable donations).

The following are also excluded:  

  1. Investor relations: communications by a company about itself to its shareholders and investors, as well as potential consumers who may be interested in the company’s stock.  
  2. Heritage advertising: communications made to the public that do not relate to the company’s current promotional strategy. These must be placed in an appropriate context to fall outside the new remit.

Sanctions  

Existing sanctions currently available to the ASA will continue to apply, and some new sanctions aimed at increasing compliance levels have been introduced.

First of all, details of non-compliant advertisers/ marketers will now be put on a microsite controlled by the ASA, and to which public attention is to be drawn so as to “name and shame” wrong-doers. The ASA may also place paid-for advertisements on search engines highlighting continued non-compliance of a particular advertiser.  

Also, some search engine providers have agreed to collaborate with the ASA agreeing to remove links which direct online users to pages containing misleading marketing communications.

This extension of the ASA’s remit makes it easier for members of the public – and competitors – to complain about misleading statements on websites.