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ASA remit extended to online

1 March 2011

From 1 March 2011 the Advertising Standards Authority (“ASA”) extended their remit to online communications.  The ASA are now able to consider complaints about companies’ own websites and in other non-paid for space which they control.  Until now the ASA’s remit only covered paid for space such as pop ups and banners.

What it covers

The Committee of Advertising Practice Code (the CAP code) only covers marketing communications.  Essentially these are communications for goods, services, opportunities or gifts that primarily set out to sell something.

Content appearing in non-paid for space, such as Facebook or Twitter will fall within the ASA’s extended remit where the content can be considered a marketing communication by a company.  This means that comments posted by employees and customers may be considered marketing communications if the company decides to adopt the comments and incorporate them into its own marketing campaign.  The respondent to a complaint about such comments will be the company.

The ASA has refused to provide a definitive list of circumstances to which it deems its remit will extend.  Instead they say that they will determine whether a communication amounts to a marketing communication “on a case-by-case basis”, allowing them to use their discretion when a complaint is received about communications made in this previously unregulated sector.

What is not covered?

The CAP code does not regulate any types of communication which are expressly excluded from its remit. Classified private ads, press releases, editorial content, and corporate reports are therefore not covered.

Why does the extension matter?

Since 2008 the ASA had received around 4,500 complaints about online marketing communications which it was powerless to investigate.  The changes are incredibly significant as more and more businesses are turning to the internet as the number one means of marketing. This is for cost reasons as well as it being the media most used by consumers these days. 

Companies now need to ensure that all of their online marketing communications are ‘legal, decent, honest and truthful’. Every company is advised to designate someone to be responsible for reviewing their website to check whether material on the site is caught by the extended CAP code and, if it is, that such material is compliant.

Often the building of a webpage is outsourced to third party ad agencies.  However, it is important to remember that the company is responsible for ensuring compliance with the code.  The increase in the code’s coverage means that companies need anyone who contributes to its website, Facebook page, or blogs or tweets on its behalf to have knowledge of what they can and can not do.  Those who do contribute should receive training on the code and social networks and user generated content should be carefully reviewed and monitored to ensure companies do not inadvertently breach the code.

Sanctions

Whilst the ASA cannot prosecute a company for failure to comply with the CAP code, an adverse adjudication may significantly damage a company’s reputation.

The advertising watchdogs also have new innovative sanctions including:

  • Enhanced name and shame policy – providing details of an advertiser and the non-compliant marketing communication on the ASA website
  • Removal of paid-for search advertising – ads that link to the page hosting the non-compliant marketing communication may be removed with the agreement of the search engines, and
  • ASA paid-for search ads – the ASA could place ads online highlighting an advertiser’s continued non-compliance.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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