At the end of well over two years of debate and one suspects not a little argument, an announcement heralds the extension of the CAP Code to website content. But there is still a way to go before all issues are buttoned down, reports Stephen Groom.
Topic: On-line advertising
Who: Advertising Standards Board of Finance
Where: the UK
When: November 2009
Law stated as at: 30 November 2009
What happened:
That the world's most efficient and respected system for advertising self regulation did not extend to most website content first came into sharp and very public focus in the first half of 2007.
The catalyst was growing concern over advertising for snack foods which shamelessly targeted kids. Principally by way of updates to the CAP and BCAP Codes (which respectively govern non broadcast and broadcast ads and are administered by the Advertising Standards Authority ("ASA")), measures were being introduced to curb the practice.
It soon became clear, however, that some brands were re-calibrating their media schedules so as to increase their online focus. This was a direct result, it was said, of the limited applicability of the ASA ad control system in that space.
Brand site content outside the Codes
The limits of that system on-line were that whereas the CAP Code extended to on-line ads in paid-for space such as banners and pop-ups as well as marketing emails and texts and on-line sales promotions, the elephant missing from the room was all other website content.
Here brands could do what they liked so far as the ASA was concerned, although website content was still at least theoretically governed by consumer protection laws such as the Consumer Protection from Unfair Trading (EC Directive) Regulations 2008.
The reasons for the regulatory black hole were clear. As things stood, the ASA simply did not have the resources to be able to cope with the huge and potentially exponential increase in complaint volumes that might result from website content being in remit.
That was as things stood. But if funds were forthcoming from a suitable source, then a remit extension might be contemplated. Just as the existing self regulatory (non broadcast) and co-regulatory (broadcast) systems were funded by a levy on ad spend in the relevant media channels, a levy on relevant on-line spend could do the trick. The conundrum, however, was which spend this might be, given that by definition the content of brand sites was not paid-for in the same way as other advertising.
Digital Media Group gets to work
Conundrum or not, the powers that be demanded a solution and the hunt for that solution began in earnest in June 2007, when the "Digital Media Group," ("DMG") an ad industry policy group, was formed under the auspices of the Advertising Association.
The DMG's objective was to "review the self-regulatory scheme for regulating ad content and make proposals that will ensure the future sustainability of the system in the light of the rapid development of interactive digital media techniques."
In July 2008 the Group published an interim "Remit Report". Progress had clearly been made in, for instance, determining the categories of on-line media that might be brought within the self regulatory tent. The Report suggested that under the new regime, advergames, pay-per-click search results, static and dynamic in-game advertising and pay per click search listings on price comparison sites should all be within remit, with more possibly to come.
Where the July 2008 Report was less clear, however, was in the area of how exactly the brave new system might be funded and enforced. Here it stated lamely that the group was consulting with stakeholders with a view to publishing a further report on funding and enforcement. A consultation on full recommendations was promised in August 2008, followed by full recommendations in September 2008.
Optimistic forecast
This forecast proved to be a tad optimistic, however, as it was not until sixteen months later that further news filtered out. But the source of the November 2009 announcement was not the DMG. Clearly underlining the reasons for the delay, the update came from the Advertising Standards Board of Finance. "ASBOF" is the sister body to the ASA that organises the funding of the system.
In a short press release, ASBOF announced that funding for the extending of the ASA's remit to "marketing on websites" had been agreed.
So far so good, although the phrase "marketing on websites" does not feature in the DMG report of July 2008 and suggests a far more limited remit extension than previously indicated.
Announcement tails off
From that point on, however, the ASBOF press release paints a significantly less conclusive picture. It turns out that the only part of the funding needed for the new system that is so far in place is "vital seed capital from Google". Still to be finalised apparently were the small matters of:
- the source of the remaining funding;
- the details of which online advertising the ASA's remit was extending to; and
- sanctions.
All this meant that the extended system was not likely to come into operation until the second half of 2010, ASBOF said, in other words in all likelihood getting on for a year from now at the earliest.
Why this matters:
Although the ASBOF release was greeted with much fanfare and back-slapping amongst the great and the good of the ad firmament, there is clearly much work still to do. Reports indicate that search engines are accepting of the fact that given the substantial revenue they derive from website owners looking to buy links to their sites, they must shoulder a degree of responsibility for the new system. It remains to be seen, however, whether this nets out to more than Google, as the dominant player in the space, committing to a contribution of just "seed corn funding."
Also to be resolved is the knotty question of whether only websites on UK servers will be caught and if so, how rules can be put in place to avoid UK advertisers neatly sidestepping this by relocating their sites.
Then there is the issue of just what "marketing on websites" will extend to. Will the DMG's high flown ideas of the system extending to advergames, pay-per-click search results, static and dynamic in-game advertising and pay per click search listings on price comparison sites end in tears?
And given that assurances have apparently been given that sanctions for breaching the CAP Code will not include the removal of a site from Google's index of the web, just how will the system have teeth?
All remains to be seen and clearly there is some way to go on this yet, with funding still key.
