Who: Committee of Advertising Practice, ASA
When: October 2013
Law stated as at: 6 November 2013
Back in March 2011, the CAP Code’s online remit was extended to cover a wider range of digital and online content. Marketing claims on advertisers’ own websites or on their Facebook pages had previously been outside the scope of the advertising code enforced by the ASA, but were now mostly caught by the CAP Code.
This was a big, bold move by CAP and the ASA. It was seen as necessary to plug a perceived gap in regulation, but was without doubt a step into uncharted waters. There was little sense as to how the resulting increase in workload could be handled or paid for – or whether the new enforcement sanctions would be adequate. There were serious questions over whether the right balance had been struck in defining what non-paid-for online content should be covered by the Code and how jurisdictional and territory issues might play into this analysis. Further, even as the remit extension was announced and then bedding in, new social media marketing practices were fast evolving that would challenge the applicability and workability of the existing CAP Code provisions.
With all this in mind, it was heartening and seemed right at the time that CAP should say in its initial announcement document that:
CAP, the ASA and ASBOF are committed to an ongoing, quarterly review of the extended digital remit with the intention of carrying out a comprehensive review in quarter two, 2013 (two years after the implementation of the extended remit). This level of review is considered necessary in order to ensure that the UK’s advertising self-regulatory system continues to work in the best interest of consumers and the marketing community in the online and offline world. As part of that commitment, the three parties invite and encourage feedback from stakeholders throughout the review period about any aspect of the remit extension with a pledge to act, as appropriate, on the significant comments that they receive.
However, Q2 came and went this year and we heard nothing. Unless we missed an earlier statement, the ASA’s Annual Statement 2013-14 – published on 31 October 2013 – contained the first public announcement to follow up on this commitment to a comprehensive review. From a regulator that has been pretty liberal in its use of public consultation exercises over the last few years, including recent consultations on technical amendments to the Medicines section of the Code and on a new narrow exemption for online betting operators, you would be forgiven for expecting a large-scale consultation or at least some kind of stakeholder engagement process. But no – hidden in the Annual Statement is the small paragraph:
Reviewing our online remit
Two years after extending the online reach of the CAP Code, we reviewed our remit definition and our enforcement measures to ensure they remain fit for purpose to regulate companies’ own ads on their own websites and in other non-paid-for space online under their control. In June, CAP and the ASA gave them both a clean bill of health. Looking ahead, our challenge is now to ensure that we make the best use of our resources to provide the most effective regulation to the online areas that need it most.
No stakeholder engagement; no analysis of problems and potential alternative approaches; no detail at all in fact. Just a brief report that 4 or 5 months ago the regulator gave itself a private pat on the back, and decided it had done a jolly good job.
Why this matters:
It’s difficult to decide what’s more surprising – the regulator’s U-turn on its promise of a comprehensive review – or their apparent belief that the extended online remit is 100% fine. What about the genuine concerns that many have around, amongst other things:
– Viral marketing content: The fuzziness around what viral content is within or outside remit largely ceased to be an issue when advertisers’ Facebook, YouTube etc content was generally brought within remit. But it remains a live issue for charities and causes: outside the context of direct solicitations of donations their non-paid-for online content is generally outside remit. But it’s not clear whether and in what circumstances a viral campaign on social media would nevertheless be caught under para III.l of the CAP Code’s Scope section.
– Online point-of-sale content: Product descriptions and images presented in the context of online retail appear now to fall squarely with the CAP Code’s remit. But this means for instance that supermarkets cannot sell infant formula online without breaching the Code (which bans advertising of infant formula other than in certain narrow contexts, although online sale is absolutely lawful). It also leads to other odd – and clearly unintended – results, such as CD covers being in breach because they show under-25s consuming alcohol.
– Jurisdiction: There still do not seem to be “bright line” rules to determine whether and in what circumstances a .com site hosted and operated outside the UK should be regarded as caught by the CAP Code’s remit.
– Re-tweeting: An advertiser’s re-tweeting of user comments may be seen as amounting to use of a testimonial. If so, what steps is the advertiser expected to take to get “documentary evidence that [the testimonial] is genuine” and to get “contact details for the person who… ….gives it”? Is it enough just to keep a screen-shot from Twitter, or does the regulator expect a more detailed diligence exercise?
Surely it’s time that CAP and the ASA took the opportunity to take soundings from industry and other stakeholders – to explore the problems that have arisen in its extended online remit and work together to find appropriate solutions? In fact, surely it’s time for that comprehensive review we were promised?