The extension of the ASA's digital remit - what does it mean for your website?

On 1st March 2011, the Advertising Standards Authority will extend its remit further into the digital space.  What implications does this have for website owners?

The ASA already has some authority over advertising in the digital space, specifically email, text messages and some forms of paid online advertising through the CAP code. From 1st March, their remit will extend to "Online Marketing Communications" - which includes websites and the content on them.

Previous complaints about issues connected with websites were unable to be dealt with by the ASA - they give a figure of 3,500 complaints in 2008 / 2009 which weren't covered by the ASA.  This, combined with pressure from the advertising industry, has led to them extending their principles of "legal, honest, decent and truthful" marketing communications to online - and bringing them into contact with an audience which probably hasn't had dealings with the ASA before.

The new code now incorporates "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."

Penalties for contravening the code are likely to include "naming and shaming" on the ASA website and ASA publicity, and other punitive measures.  The ASA has said, however, that it would be more likely to work with anyone contravening the code on an informal basis to start with which would lead to no formal adjudication.

The Extension of the Code - Examples

"... Directly connected with the supply or transfer of goods"

Example: ecommerce site

Possible areas which might contravene the code are:

  • Price match to product described
  • Guaranteed delivery
  • Availability claims

but NOT customer reviews (e.g. on Amazon).  However, section 2.3 of the CAP states "Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context."  So marketers planting comments acting as 'consumers' - this would be a banned practice both under the ASA code and under European Law.

"... Directly connected with the supply of a service"

As an example, speed claims for broadband from a broadband supplier.

"... other non-paid-for space online under their control"

This means that as well as content on a company website, Facebook pages and Twitter feeds will also need to comply.

User Generated Content falls within remit if the website owner adopts and incorporates it within their own marketing communications e.g. Facebook comments - don't fall within remit, but photos from a promotional event which users submit and are then used on a company website would be.  On Twitter, retweeting user comments makes it fall within the remit (e.g. an availability claim about a product on an ecommerce site).

"... Direct solicitations of donations as part of their own fund-raising activities"

Won't draw whole charity websites within remit, but will draw in material (e.g. landing page on website) designed to make public donate. It won't cover campaigning material, unlike the usual ASA code which defines a product as "goods, services, ideas, causes, opportunities, prizes or gifts."  The digital extension now removes "ideas and causes" from this list.

These rules won't cover natural listings on a search engine or price comparison site, and "heritage" advertising (e.g. old Guinness advert videos) as long as they're placed within appropriate context.

Examples of complaints which have been received previously which ASA weren't able to deal with

The ASA said that the top areas of complaints that the ASA weren't able to deal with previously were leisure (games, films), food and drink (not alcohol) and health and beauty.  The vast majority of these complaints involved online retailers and travel booking websites.

Some examples of the transgressions of the CAP code which would now fall under the digital extension:

"3.9 ... not stating significant limitations or qualifications"
Bus airport transfers website advertised low cost airport transfers on their website and that "Services run for 24 hours".  Complaint: didn't run between 11pm and 3am.

"3.17 ... price statements must not mislead by ommission and relate to product listed"
On a website selling children's garden play equipment was a swing for sale.  The picture accompanying the product showed a full set of equipment (including slide), but the price was just for the swing (although body copy did clarify this).

"3.18 ... Quoted prices must include non-optional taxes, duties, etc."
A travel language courses website advertised a Spanish course. Price per person quoted didn't include non-optional booking fee, so you couldn't actually get the course at the quoted price.

"3.7 ... must hold evidence for any claims that consumers are likely to believe are objective"
A water bottle cover which was claimed "emitted infrared emissions" to "achieve stable hydration levels".  A breast cream which  "Helps to increase bust size naturally".  Neither could provide evidence for claims.

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