From 1 March 2011, the Advertising Standards Authority's ("ASA") digital remit will be extended to include advertisers' own marketing claims on their own websites and in other non-paid-for space under their control, such as social networking sites like Twitter and Facebook.

The extended remit will apply to all sectors and all businesses and organisations which are operating from the UK, regardless of size, ensuring the same standards of consumer and business protection as in other media.

Business Impact

  • From 1 March 2011, the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the "CAP Code"), including the rules relating to misleading advertising, social responsibility and the protection of children, will apply in full to marketing messages online. From 1 March, anyone who is concerned about a marketing message within a website will be able to log a complaint with the ASA.
  • Businesses can also expect complaints from competitors about marketing claims made on their websites, as a way of pressuring the withdrawal of claims that potentially fall foul of the CAP Code, in the face of the threat of negative publicity from a negative adjudication from the ASA.
  • In addition to the sanctions which are presently enforced by the ASA against marketing communications that do not comply with the CAP Code, a number of new sanctions will also apply to the extended remit. These new sanctions include an enhanced name and shame policy, removal of paid-for search advertising from search engines and the placement of advertisements online by the ASA to highlight an advertiser's continued non-compliance.
  • All businesses and organisations should be aware of the need to comply with the new rules and should ensure that their websites comply with the requirements of the CAP Code before 1 March. The Committee of Advertising Practice (CAP) is providing guidance and training to help website owners and agencies to ensure that their sites comply via "CAP Services", further details of which can be found at this link. CAP will also offer a new website audit service from 1 February to allow businesses to get advice from its Copy Advice team on whether or not the marketing messages on their websites comply with the new rules.
  • Businesses and organisations should be mindful of how they permit content created by private individuals to be displayed on their websites (e.g. endorsing posted entries), which may fall within the new remit and be subject to regulation by the ASA if it is adopted and incorporated within an organisation's own marketing communications on its own website or in other non-paid-for space online under the organisation's control.

Background

The ASA is the UK's independent regulator of advertising across all media, including TV, internet, sales promotions and direct marketing. Its role is to ensure that adverts are legal, decent, honest and truthful by applying the Advertising Codes (the UK Code of Broadcast Advertising and the CAP Code). The ASA's work includes acting on and investigating complaints as well as proactively monitoring and taking action against misleading, harmful or offensive advertisements, sales promotions and direct marketing.

The ASA's present remit online includes regulating advertisements in paid-for space (such as pop-ups and banner ads) and sales promotions wherever they appear. According to the ASA's Chairman, Lord Chris Smith, the ASA has received over 4,500 complaints since 2008 about marketing communications on websites that it was not able to deal with as they fell outside its remit. To address this regulatory gap and in response to a formal recommendation from a wide cross-section of UK industry, CAP decided to extend the digital remit of the ASA to include advertisers' own marketing claims on their own websites and in other non-paid-for space under their control.

Scope

The new remit will cover:

  • Advertisers' own marketing communications on their own websites;
  • Marketing communications in other non-paid-for space under advertisers' control, such as pages on social networking sites like Facebook and Twitter; and
  • Advertisements and other marketing communications on all UK websites, regardless of sector, type of business or size of organisation.

Meaning of 'marketing communication'

A 'marketing communication' is a type of communication for a good, service, opportunity or gift that primarily sets out to sell something. This includes advertising, sales promotion and direct marketing.

It does not include other types of communication which are explicitly excluded by the CAP Code, such as classified private advertisements, press releases and other public relations material, journalistic and editorial content, political advertisements, corporate reports or investor relations. Material related to causes and ideas - except those that are direct solicitations of donations for fund-raising - are also excluded.

User generated content ("UGC")

According to ASA guidance, UGC (content provided by private individuals) will fall within the new remit 'only if it is adopted and incorporated within an organisation's own marketing communications on its own website or in other non-paid-for space online under the organisation's control'.

Assessing whether UGC amounts to a marketing communication falling within the new remit will be considered on a case-by-case basis, taking particular account of its context. The ASA has stated, by way of example, that it 'is likely to take a very different view of a consumer's positive comment that has been posted by the website owner in a prominent way on the front page of its website, than if that same comment appeared within the context of a consumer message board that is moderated for harmful and offensive language or images only'.

Sanctions

In addition to the ASA's present sanctions (such as adverse publicity arising from an ASA adjudication and the withdrawal of trading privileges, including media space) the following new sanctions will apply to the extended remit:

  • An enhanced name and shame policy, providing details of an advertiser and the non-compliant marketing communication on a dedicated part of the ASA website.
  • Removal, with the cooperation of the search engine, of paid-for search advertisements that link to the page hosting the non-compliant marketing communication on the advertiser's website or in other non-paid-for space online under the advertiser's control.
  • Placement of ASA paid-for advertisements on internet search engines that highlight an advertiser's continued non-compliance.

Funding

The industry has agreed to apply the standard 0.1% levy on paid-for advertisements appearing on internet search engines through media and search agencies. This will be supplemented initially with seed capital from Google.