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Amends to the ASA Cap Code coming into effect 1 March 2011

Written by Gavin | 02-Sep-2010 10:13:32

The ASA is extending its remit to cover all areas of online marketing communication. Importantly this now includes company’s communication on their own websites and any other area they control online:

Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.

Main Websites controlled by clients are generally well maintained and obey the 10 basic principles of the ASA:

  1. Marketing communications should be legal, decent, honest and truthful.
  2. Marketing communications must reflect the spirit, not merely the letter, of the Code.
  3. Marketing communications must be prepared with a sense of responsibility to consumers and to society.
  4. Marketers must comply with all general rules and with relevant sector-specific rules.
  5. No marketing communication should bring advertising into disrepute.
  6. Marketing communications must respect the principles of fair competition generally accepted in business.
  7. Any unreasonable delay in responding to the ASA’s enquiries will normally be considered a breach of the Code.
    • The full name and geographical business address of the marketer must be given to the ASA or CAP without delay if requested.
  8. Marketing communications must comply with the Code. Primary responsibility for observing the Code falls on marketers. Others involved in preparing or publishing marketing communications, such as agencies, publishers and other service suppliers, also accept an obligation to abide by the Code.
  9. Marketers should deal fairly with consumers.
  10. Marketers have primary responsibility for ensuring that their marketing communications are legal. Marketing communications should comply with the law and should not incite anyone to break it.
    • Marketers must not state or imply that a product can legally be sold if it cannot.

This extension of regulation does put pressure on brands to manage their smaller web properties in a more controlled and careful way going forward. Campaign microsites or secondary sub-sites now need to be actively managed and will need to be updated or mothballed if the campaign lapses or product information changes. If not then an ASA complaint could easily be filed against the client.

Affiliate Marketing campaigns will now need to be managed much more closely administered. Many affiliate campaigns have thousands of affiliates many of who have supplied little value to the clients over the campaign. These “lapsed” affiliates could now become a liability with out of date offers and creative being subject to ASA regulation as these are undoubtedly “under their control”. Equi=Media have been proactively managing down affiliate campaigns to a size where the value is delivered from affiliates who are actively managed and engaged updating copy and creative as required. It is likely that all clients and agencies will have to start implementing similar policies if they have not already done so and Affiliate Networks will have to update the way they operate with vast “Longtail” affiliate programmes in this revised regulatory framework.

Social Media is specifically addressed in the new remit and incorporates its broadest definition including “Advergames” and “User Generated Content”, not just branded YouTube channels and Facebook pages. The key thing here is if it obviously promotes the sale of any goods or services.

If user generated content:

  • Is solicited by the company for that purpose, for instance Facebook apps that place the companies brand on a consumers status at their request.
  • Is material provided by a consumer which is subsequently incorporated into material whose primary focus is marketing related, this could well include positive reviews which are in error and not corrected on a site that sells the item? We are raising this as part of the consultancy before the new code comes into effect.

The inclusion of “Advergames” could well mean that many branded free iPhone applications could be subject to ASA control

There are a number of exclusions specifically listed by the ASA in the remit extension:

  1. Classified private advertisements
  2. Press releases and other public relations material
  3. Editorial content
  4. Political advertisements
  5. Corporate reports
  6. Natural listings on a search engine or a price comparison site
  7. Marketing communications in foreign media
  8. Claims in marketing communications in media addressed only to medical, dental, veterinary or allied practitioners, that relate to those practitioners expertise
  9. From the preface to the CAP Code: ‘The Code is primarily concerned with the content of marketing communications and not with... products themselves’

The most interesting of these could be “Marketing Communications in Foreign Media” as more and more content is hosted elsewhere other than the UK. For instance YouTube content that may be hosted on servers in the US. Two new exclusions are also included relating to “Investor Relations” and “Heritage Advertising” excluding communication aimed at the financial and investor communities and allowing companies to maintain historic adverts which may no longer be correct on their sites as long as they are clearly labelled as such.

For clients that break these new regulations (or the existing remit of the ASA CAP Code) three new Sanctions have been introduced:

  1. A name and shame microsite that is operated and promoted by the ASA explicitly to highlight non-compliant advertising.
  2. Removing paid for listings with the help of the search engines that link directly to the non-compliant material
  3. The ASA could even place paid for advertising on search engines that highlight false claims or other non-compliant material on clients websites.

As an agency directly and through our membership of industry bodies we will be engaging in the consultancy period on these new regulations before they are implemented in March 2011. We will seek clarification and further explanation on a number of points to ensure we are in the best position to advise our clients on the implementation of these new regulations.