Who: Advertising Standards Authority (“ASA”)
Where: UK
When: 11 February 2016
Law stated as at: 14 March 2016
What happened:
The ASA has updated its procedures for processing complaints about adverts. The amendment has been made specifically to the treatment of complainants’ evidence. The change is to ensure that if the ASA is going to rely on evidence submitted by a complaining party, this is provided to the advertiser whose advertising has been challenged. In this way the defending advertiser will not be left in the dark about the full extent of the case against them.
The change is therefore that a complainant must now agree that any documentary evidence submitted in support of a complaint must also be shared with the advertiser for the ASA to rely it.
If the complainant does not agree to the disclosure of the evidence to the advertiser then it will not form part of the ASA Council’s assessment of the matter.
However, the ASA will only disclose the complainant’s evidence to the defending advertiser after the latter has submitted its first response.
The ASA has clarified that this does not change the requirement for advertisers to support and substantiate any claims made in advertising. Also, the ASA’s policy to only disclose the identity of non-consumer complainants (for example, competitors) also remains unchanged.
Why this matters:
It is important for complainants to understand that if they want the ASA to rely on it, the evidence they submit as part of a complaint may now be released into the public domain by way of the publication of the ASA’s eventual adjudication on the ASA’s website. Although this is laudable as it increases the transparency of the ASA complaints regime, complainants should take care before disclosing any potentially confidential information as evidence.
