UK Advertising Standards Authority's online remit extended
Posted by Siobhan Doherty
From 1 March 2011, the remit of the UK's Advertising Standards Authority (ASA) has been extended to apply both to paid-for and free online marketing communications. The use of social media platforms such as Facebook and Twitter now falls within the scope of the ASA's authority.
Previous position
The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) sets out rules which seek to ensure that advertisements do not mislead, harm or offend.
Prior to 1 March 2011, the CAP Code extended only to internet advertising that had been paid for (eg banner ads, pop-ups and paid search results), and the ASA had no ability to investigate complaints made in relation to 'non-paid-for' digital communications (such as those made via social networking sites) or to impose sanctions in relation to any such communications that were not compliant with the CAP Code.
Extended digital remit
The CAP Code now applies to all online marketing communications, including marketing on a company's or sole trader's own UK based website and in other 'non-paid' space it controls (including its official Facebook and Twitter pages) where the communications are intended to sell something.
Further, if a company or sole trader 'adopts and incorporates' user generated content within its own marketing communications (eg 'retweeting' customers' comments), that communication will now fall within the ASA's remit.
Excluded communications
The following types of information (among others), which may appear on a company's website, are specifically excluded from the scope of the CAP Code:
• statutory reports;
• press releases and other public relations material;
• editorial content;
• natural listings on a search engine or a price comparison site;
• customer charters and codes of practice;
• investor relations material; and
• 'heritage advertising', provided it is not part of the company's current promotional strategy and is placed in an appropriate context.
Foreign media
The CAP Code also does not to apply to marketing communications in 'foreign media'.
If a marketing communication appears in media based in a country that has a self-regulatory organisation (SRO) which is a member of the European Advertising Standards Alliance (EASA), the EASA will coordinate any cross-border complaints so that the SRO in the country of origin of the communication will have jurisdiction, but consumers need complain only to their local SRO.
The Advertising Standards Bureau (ASB) in Australia is an SRO and a member of the EASA. Therefore, any UK consumer complaints received by the ASA regarding marketing communications that originate from Australia will be referred to the ASB.
In the online context, however, the origin of a marketing communication may not be clear (eg a 'tweet' to the world at large by a global company). The ASA has indicated to us that whether or not it will refer a complaint to a foreign SRO or consider the complaint to fall within its own remit will depend upon the circumstances of the marketing communication that is the subject of the complaint, including whether the relevant company has operations in the UK and whether the communication was directed, in whole or in part, to customers in the UK.
The lesson for Australian businesses?
Australian businesses, particularly those with operations or customers in the UK, should think carefully about their use of social media platforms and their own websites as marketing tools because these online communications may now be subject to the CAP Code.
Partner: Michael Whalley
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