On 1 December 2008, the Advertising Standards Authority (ASA) published its Compliance Report—Digital Media Survey. The Report reveals that where the self-regulatory rules apply in digital media there is a high compliance rate. The report also points out, however, that the ASA’s remit does not extend to companies’ own websites (other than in regards to sales promotions) and that around 70 per cent of complaints investigated could not be resolved as they related to communications that are currently outside that remit.

OVERVIEW

Top of the class with 100 per cent compliance with the Committee of Advertising Practice (CAP) non-broadcast Code came virals, podcasts and mobile messaging. Bringing up the rear were sponsored search ads and emails. By far the worst performing sector, responsible for 10 out of the 16 breaches recorded, was the health and beauty sector. As a result, the ASA has vowed that digital adverts in this area will be subject to greater scrutiny in the future.

Although outside the Report’s remit, many viral emails would have breached the ASA’s code. Another problem identified with virals was parodies of an existing advert, often produced by amateurs without the knowledge or consent of an advertiser. The ASA advises advertisers that while it is up to them how they deal with this phenomenon, it might be sensible to leave alone parodic versions of their adverts that are popularly received, but to insist on the removal of versions that are too risqué or offensive to certain groups.

Another concern raised by the ASA in its Compliance Report concerns social networking sites and in particular paid -for, user-generated ads. The ASA warns that such models will need to be watched closely in future mainly because the typical user could well be an entrepreneurial individual or small business owner with perhaps a low awareness of CAP Code requirements. It does seem however that, for the time being at least, the ASA is worrying unnecessarily about the small business owner since the four paid-for ads found to breach the Code were placed by established companies. Three of those four ads included prima facie breaches of the Code and were placed by companies that either should have known the applicable rules or that had previously been told by the ASA to amend claims when they appeared in other media.

COMMENT

The ASA concludes that the high compliance rate recorded in the Report belies the common perception of digital ads being the “wild west” of non-broadcast media. However, despite the generally upbeat tone of the Report, the high number of breaches by health and beauty sponsored search ads and emails has given the ASA cause for concern and the Authority will continue to keep a close eye on this sector in the future. Another problem for which the solution proves much less straightforward remains the widespread concern about digital marketing communications that currently fall outside the ASA’s regulatory scrutiny, such as companies’ own websites. With digital media marketing set to overtake television as the biggest advertising medium in the United Kingdom, it is perhaps safe to say that this concern will increase in line with the predicted growth rate of “new media” communications. No doubt the ASA will continue to seek an extension to its remit in order to further protect the public from irresponsible marketing regardless of the medium in which it is packaged.