Govt pressure for more online content to be policed by the Advertising Standards Authority started after the Byron Report 2008. Now the Advertising Association suggests progress but what are the take-outs emerging for marketers? Stephen Groom picks five of them.
Topic: Regulatory
Who: Advertising Association, Committee of Advertising Practice and the Advertising Standards Board of Finance
When: March 2010
Where: London
Law stated as at: 25 March 2010
What happened:
The Advertising Association announced that it was "recommending" the extension of the UK's self-regulatory advertising control system to more online content.
Here are five key points coming out of this development for UK advertisers and their agencies.
1. Don't hold your breath. Progress towards an extended ASA digital remit has been glacial so far and getting the system up and running is still some way off. All that's happened recently is that after nigh-on three years of stakeholder discussions about how to make it happen, the advertising trade body the Advertising Association has "recommended" an extended online remit for the CAP Code.
It took four months for this to be announced following a November 2009 press release from ASBOF (the Advertising Standards Board of Finance, which organises the financing of the whole ASA/CAP self-regulatory caboodle) saying that the funding for the new remit had been agreed. Now it's down to the Committee of Advertising Practice to "assess the practicalities of the recommendations." Knotty issues still to be resolved and are likely to include:
• will the new digital remit extend to all websites targeted at UK consumers or only to sites hosted on UK servers and if the former how will the rules be enforced?
• where will the line be drawn between in-remit online marketing content and out of remit editorial?
• will the regime extend beyond marketing content on advertisers' own websites to for example activity on social networks such as brands' fanpages on Facebook?
Current, official indications are that these issues are not likely to be resolved and the new system up and running until "later in 2010," for which read October 2010 or maybe even Spring 2011.
2. But it's not necessarily a case of making hay while the sun shines. The CAP Code already covers a fair amount of online marketing, although in some cases the edges have always been a little blurred. Paid-for banner and pop-up ads, marketing emails and texts are clearly caught, but then there are the slightly fuzzier "sales promotions on websites" and online "advertisement promotions." Hopefully the new system will remove the need for debate over just how far these grey expressions extend.
3. Also, not that you'd know it from viewing some UK sites, marketing content in brand owners' websites is already heavily regulated. Unfair commercial practices legislation which came into force in 2008 is medium-neutral and can already result in criminal prosecutions for marketers whose sites get it wrong. Then there are e commerce and distance sales regulations that can bite marketers who don't toe the largely Brussels-dictated line in terms of the supplier/product/deal information they post.
4. Existing laws also impact marketing activity outside brand owners' own sites. For example fake blogs or product reviews can be a criminal offence under the unfair commercial practices laws mentioned in #3 above.
5. But existing laws and delays notwithstanding, there's no escaping that it will be a whole new regulatory ballgame for digital marketers once it is clear exactly where the new digital code goalposts are going to be planted and the new system is up and running. A surefire way to cushion the impact will be for advertisers and agencies to operate now as if the remit had already been extended! Wishful thinking?
Why this matters:
As reported elsewhere on marketinglaw.co.uk, it must have been disappointing for CAP and the ASA that this important and ground-breaking development could not have been carried through in time for launch at the same time as the new CAP and BCAP Codes on 1 September 2010.
But there are knotty issues still to be resolved and after this length of time it is clearly important that stakeholders have as long as it takes to bottom these out and arrive at a viable system.
Being a natural optimist the writer's prediction is a 1 October 2010 launch, but time will tell.
Stephen Groom
Head of Marketing and Privacy Law
Osborne Clarke London
stephen.groom@osborneclarke.com
