Who: The Advertising Standards Authority (“ASA”)
Where: United Kingdom
When: May 2015
Law stated at: 13 June 2015
What happened:
In May 2015 the ASA released its Annual Report for 2014, reviewing some of the highlights (and lowlights) of the previous year’ advertising action and setting out its stall for the coming twelve months.
2014- Prioritisation, Profanity and Pistorius
Last year saw the regulator launch its Prioritisation Principles, a toolkit developed in consultation with other regulators to facilitate the ASA’s targeting of action against the adverts that cause the most harm to the general public and most require intervention in an efficient manner.
The regulator has announced its intention to take a number of steps in 2015 to “bring these to life”. The numbers for 2014 suggest a change of approach, as despite a rise in the number of complaints (c.6,000 more in 2014 than in 2013) partly driven by the continuing rise of social media helping the public to voice and coordinate complaints, the regulator processed c.1,500 fewer cases.
Another milestone was the disbanding of the Office of Fair Trading (“OFT”) in April 2014, which used to provide legal backstop powers for the ASA. While this role has now been taken on by Camden Trading Standards (“TS”), with all due respect to the latter, the ASA arguably no longer has a “big beast” regulator standing behind it.
Also, although in 2014 the ASA referred on to TS a couple of small retailers persistently making misleading health claims, reports of any further enforcement action by TS have been difficult to find and it remains unclear how the regulator will deal with larger advertisers persistently flouting the rules, as was the case with the Ryanair and Groupon OFT referrals under the prior system.
Immediate enforcement action taken in two cases
2014 was also notable for a couple of cases where the regulator unusually took immediate action against adverts that it deemed particularly harmful. One was an ad linking alcohol and driving, and the other was Paddy Power’s notorious Oscar Pistorius trial advert, banned for “trivialising a murder trial and disability” and for which a record number of complaints (5,525) was received. In both cases the ASA took steps to suspend the advert pending investigation. Advertising that is clearly far over the line continues to carry the risk of this happening.
However, public disquiet with an ad still does not necessarily equate to a certain “upheld” complaint. A good example is Booking.com’s advert from this year, where over 2,300 members of the public complained that the word “Booking” was alleged to be standing in for a swear word. Despite this, the ASA found that the ad had not breached the code. Although the apparent play on words might cause some offence, the ASA robustly intoned that it was not the job of the CAP Codes to protect members of the public from being “offended by their own worldliness.” It was only if “serious or widespread offence” was likely to be caused that the CAP Codes were engaged.
Leisure and media continued to be the most complained about areas of advertising, but it has also been a year of the ASA meeting the challenges of new technologies and channels head on. After a spate of adjudications on e-cigarette advertising, ads for e-cigarettes and other vaping products gained their own CAP code section, following a consultation.
The regulator also issued a number of rulings on vloggers, where products were being promoted on video bloggers’ YouTube channels without proper disclosure of the commercial arrangements that were in place. New guidance on this was also published.
Also on channels, 2014 also was a watershed year, being the first year that the ASA dealt with more complaints about online advertising than about TV or print.
What does 2015 hold?
The ASA has set out its strategy for 2015, subdivided into 5 broad areas: understanding, support, impact, proactiv[ity] and awareness:
- taking positive steps to identify problem areas, commissioning research where necessary to support pro-active action (as with the ASA’s work on copycat websites in 2014);
- continuing to roll out the CAP e-learning offering, to provide a new channel for advertisers to inform themselves about how to advertise compliantly;
- focus on prioritisation principles to enable actions to have greater impact (e.g. dealing with complaints about seasonal ads in a timely fashion, as was done with Sainsbury’s WW1 Christmas TV ad, which garnered over 700 complaints but avoided a “complaint upheld” finding); and
- increasing awareness of the ASA and CAP through public consultations and – from January 2015 – a cross-media advertising campaign.
Broadband advertising also looks to be an area of particular focus for the regulator. The ASA’s report makes it clear that it feels that the industry practice of advertising low or “free” prices, but hiding line rental in the small print is not acceptable. The report announces that public research will be done over the summer jointly with Ofcom, so advertisers and counsel working in this area should certainly have this on their radar.
Why this matters:
All advertisers should have an eye on the ASA’s annual report as it is a good indication of where the regulator’s priorities lie. Other than the clear steer that broadband providers should get their houses in order now or risk being in the regulator’s sights, the overall message seems to be that the ASA is seeking to work smarter and in a more efficient fashion. The recent announcement (connected with the Prioritisation Principles) that complaints should be limited to a maximum of three sections of the CAP or BCAP code is a case in point. It will be interesting to see how this, and other changes in approach affect the statistics in the 2015 report.
