The long-expected extension of the CAP Code to cover marketing content on advertisers’ own websites is still widely expected to go live in September 2010. But with just three months to go, isn’t it about time for CAP to start unveiling the detail of this key development? Nick Johnson suggests some areas that advertisers will wish to see clarified.
Topic: Online advertising
Who: Committee of Advertising Practice
Law stated as at: 28 May 2010
Back in March 2010, the Committee of Advertising Practice and the Advertising Association announced with much fanfare that the CAP Code's remit was to be extended to cover a wider range of online marketing activities.
The Code, enforced by the ASA, already covers advertising in paid-for online media space (eg banner ads) and online sales promotions. But other content within advertisers' own websites and on social networking sites has to date fallen outside the Code's and the ASA's remit.
Now, with the help of seed funding from Google, the proposal is to extend the CAP Code's digital remit to cover these areas. The March announcements stated that the extended remit was expected to come into force during the third quarter of 2010 "after appropriate consultation". However, with radio silence since then on the detail of the proposal, and the summer holiday season shortly upon us, time is now running out for CAP and the ASA to run an effective consultation process.
Why this matters:
There are some tricky issues that the remit extension will need to address, including the following:
– Editorial/advertising divide. Will all content on an advertiser's website be seen as a "marketing communication" and hence subject to the extended Code? Or will it depend on the nature of the material – for instance will corporate reports, news items and press release archives remain out of scope? If a distinction is to be drawn, how will this be framed?
– Point-of-sale material. In the offline world, point-of-sale material falls outside the CAP Code's remit. Presumably the same rule will be applied in the e-commerce environment? If not, bricks-and-mortar stores would have a significant unfair advantage over their online counterparts. But if a point-of-sale exemption is to apply online, how will this be defined?
– Natural/organic search results. Currently paid search results fall within the Code's remit. But should non-paid-for search results fall within the new remit or not? (Bear in mind that search results depend on the search engine's algorithms but can also depend to a large extent on how the site owner has configured their site so as to take best advantage of those algorithms.)
– Funding and capacity. The ASA already reportedly receives over 2,000 complaints a year about online content that is currently out of remit. Once their remit extends, the number of complaints is likely to increase significantly. Just what is the funding formula for the new digital remit, and can advertisers be confident that the ASA will have enough resource to deal with the significant additional burden without turn-around times and quality generally suffering?
– Sanctions. The March announcements suggested that new sanctions would become available to deal with on-line content. Clearly additional sanctions will be essential for the extended remit to be credible and have effective teeth: unlike the position with TV, press, radio and poster ads etc there is often no separate media owner who can assist in enforcing against non-compliant website content – the "media owner" is the advertiser. So the involvement of Google and other major gatekeepers may be key. There was speculation at one stage that Google and others might provide a back-stop sanction of "de-listing" the sites of advertisers who refused to comply with ASA adjudications, such that their sites would not appear in Google search results etc. More recent reports suggest that's not what's intended. But what will the new sanctions comprise? Will the search engines flag ASA non-compliance in some way against search results relating to specific advertisers? Will advertisers who refuse to comply with ASA rulings be denied the opportunity to buy paid-for search?
Given the lead times that can be required for significant website redevelopment and the typical planning cycles for online campaigns, advertisers will want CAP and the ASA to move quickly now to clarify and consult on these and other points.