Who: The Advertising Standards Authority (“ASA”)
Where: United Kingdom
When: 25 July 2014
Law stated as at: August 2014
What happened:
The ASA has updated the complaints handling procedure contained within its detailed guidance documents: Broadcast Complaint Handling Procedures and Non-broadcast Complaint Handling Procedures (“Guides”).
The Guides describe the process that the ASA follows when it handles complaints received about advertising, sales promotions, and direct marketing in broadcast and non-broadcast media.
This article looks at the main changes from the previous versions published in 2012.
Informal resolution of investigations
Perhaps the most dramatic change is the significant restricting of the circumstances in which informal resolution of a complaint will be considered.
Informal resolution avoids the need for the publication of a full adjudication on the ASA website. The site will simply name the advertiser and record that they have agreed to amend or withdraw the advertising without the need for a formal investigation.
Before, the Guides cited 12 situations in which informal resolution of complaints may be offered or agreed. These have been radically slimmed down to four, which are:
• an apparent breach has been remedied by an advertiser after being contacted by the ASA;
• the number and seriousness of the complaints does not provide good reason to investigate the case formally;
• there is no obvious pattern of unwillingness or ability to abide by the Code; and
• there is no pressing need to investigate formally, for instance in order to establish a policy on a particular issue.
The ones that have gone include:
• the case can otherwise be resolved between the parties promptly with a view to quickly amending or withdrawing the marketing communication;
• an apparent breach has been remedied by an advertiser before (as opposed to after-see first of the four remaining situations listed above) being contacted by the ASA;
• non availability of goods or services that have been advertised;
• complete co-operation on the Part of the marketer;
• the advertiser has a good record of honouring previous assurances or
• the advertiser has had fewer than four informal resolutions in the last six months.
Excessive or repetitive complaints
The updated Guides include a new paragraph clarifying that the ASA can reject excessive or repetitive complaints. The ASA says that “any such restriction will be applied proportionately, will be time limited and we will communicate with affected complainants before a restriction is applied”.
Confidentiality
Both Guides have expanded their sections on confidentiality. They now say firmly that once a complaint has been made or an investigation has begun, “no party should take steps which could risk compromising us reaching a fair decision on the matter or otherwise constitute, in our opinion, an abuse of process”. In addition to this, the ASA also makes it clear that if a party fails to comply with confidentiality requirements, this could result in “us refusing to consider the party’s further comments on the investigation.”
Delaying publication of an adjudication
In exceptional circumstances, the publication of an adjudication can be delayed pending the outcome of a review. The Guides now stipulate that any request for such a delay must be received by the Chief Executive of the ASA by 10am on the Friday immediately preceding the notified publication date.
Placing submissions directly before the Council
New sections have been added to the Guides on allowing the advertiser to provide a submission to be placed directly before the Council. These may only be made in exceptional circumstances and they must not contain information that has not previously been provided in the course of the investigation.
Normally they must not exceed 1000 words and “submissions of greater length may not be considered.” Presumably “may” is used here to mean that submissions over 1000 words might not be considered as opposed to meaning that the Council is not allowed to consider longer submissions.
Why this matters:
This is the fourth time that the ASA has updated its complaint handling procedures since they were first published in July 2007. It is good that the procedures are kept under constant review and regularly updated based on experience.
It is interesting, however, that without explanation, the ASA has apparently taken an axe to the types of cases in which informal resolution of complaints will be considered. Up until now, and especially since the dramatic extension of the regulator’s remit to cover most online communications, informal resolution has been one of the ASA’s favourite ways of keeping its caseload under control.
The new approach bespeaks less a slight tweak and more a material policy change. Maybe the ASA has got thoroughly on top of its case handling issues and is no longer prepared to be such a soft touch when advertisers plead for informal resolution.
