New ASA regulations – 'Extending the digital remit of the CAP code'

For a number of years the Advertising Standards Authority (ASA) has, it seems, been attempting to get a tighter grip on all aspects of digital communications and marketing. The fact that it has grown so far, so fast has made the ASA increasingly inclined to take action. Over 2008 - 2009, it had to reject around 3,500 claims about companies' own websites because they fell outside its remit, which until now has been to regulate paid-for advertising only. So it has taken steps to 'close this regulatory loophole and clamp down on irresponsible marketing', particularly where it targets children and 'vulnerable' people.

From 1st March 2011, the ASA will 'regulate advertisers' own marketing communications on their own websites and in other non-paid for space online under their control'.

This means that:

• websites – both where ads are placed and the advertisers' own websites
• all social networking sites

which contain any kind of information which can be interpreted as selling something – whether it's goods, a service, opportunities or gifts – will be subject to the ASA's rules and will have to comply with the Committee of Advertising Practice (CAP) code.

What's covered

To give itself the broadest possible remit, the ASA has stated that it will regulate:

• 'advertisements and other marketing communications' – this means everything from ads to videos to games
• solicited user-generated content which is used to sell something
• unsolicited contributions from the public which are used to sell something

What's excluded

The ASA does not regulate:

• Classified ads
• Press releases, editorial and other public relations material
• Corporate and investor relations material
• Political ads
• 'Natural' listings in search engines and price comparison sites
• Marketing communications in foreign media
• Marketing communications directed at doctors, dentists, vets and allied practitioners
• Heritage advertising, which basically means any historic ads or branding which is 'iconic' and plays an important part in the UK's social history

What will happen if companies don't comply

As the ASA tends to be passive rather than active, it relies fairly heavily on complaints from the public to bring non-compliant marketing communications to its attention. If the complaints are upheld, the ASA can apply sanctions on a sliding scale:

First offence

• Request removal of the offending content

Continued non-compliance

• Naming and shaming on an ASA microsite
• Removal of ads from search engines
• Placing paid-for ASA ads on search engines highlighting companies which have not complied, with a link to the ASA microsite

The result

Fortunately, the CAP code (though it looks frighteningly precise on paper) is based on common sense and can be summed up as 'tell the truth and try not to offend anyone'. However, the ASA's attempt to regulate something this big will bring its own problems:

• jurisdictional and enforcement challenges – highlighted by the ASA itself in its paper
• vague definitions such as 'other marketing communications' are bound to cause confusion and a lot of debate over what constitutes selling
• the potential for not necessarily malicious but questionable reporting by competitors – for example, Starbucks' challenge to Costa Coffee's claim that '7 out of 10 coffee lovers prefer Costa'. The complaint was not upheld, but it involved a costly and time-consuming investigation.

The ASA has made an admirable attempt to deal with the more controversial and morally debatable aspects of digital marketing. But the very nature of these kind of campaigns means that they bend rules and take risks, so it's debatable whether the threat of a slap on the wrist will make any difference – in some cases it might even enhance the brand. What the legislation is likely to do, however, is have an impact on the process of getting ideas from the drawing board to the audience as responsible companies do their best to comply, and potentially provide the ASA with an enormous bureaucratic headache as it tries to monitor hundreds of thousands of pages of web content which change at regular intervals.

This blog post was written by Steph

If you would like to discuss this post, why not follow us on Twitter?