The premium rate line regulator PhonePayPlus and the Advertising Standards Authority have overlapping remits. Both have jurisdiction, for example, over ads which may be less than transparent over the cost of dialling a premium rate number. Now the bodies have signed a “Memo of Understanding.” Will this mean more clarity on the demarcation lines? Anna Williams connects.
Who: Advertising Standards Authority and PhonepayPlus
When: 7 October 2010
Where: United Kingdom
Law stated as at: 2 November 2010
PhonepayPlus (PPP), the premium-rate phone service regulator, and the Advertising Standards Authority (ASA) have jointly published a Memorandum of Understanding to outline closer co-operation between the two bodies going forwards.
The reason behind this move is probably that both organisations are increasingly involved in considering issues associated with new digital media services and their related marketing and so cross-overs and duplications of effort are becoming more likely.
The Memorandum provides a framework for co-operation between the two bodies, particularly in regard to:
1. promoting mutual support and a common understanding of each other’s regulatory responsibilities;
2. formalising an agreed procedure for handling complaints;
3. facilitating the exchange of information to assist each to fulfil their regulatory responsibilities; and
4. ensuring appropriate consultation between the two bodies on matters of mutual interest.
The Memorandum document created is not intended to be legally binding so what does it actually say and to what does it commit both parties?
How the territory-in-common is divided between the two bodies
The Memorandum summarises how the ASA is responsible for the regulation of non-broadcast ads and broadcast ads but fails to mention the ASA's up and coming remit extension further into the world of online ads. It notes how the ASA is the 'one-stop shop' for advertising complaints within the UK.
Where PPP is concerned, the Memorandum points out how premium rate services cover information and entertainment transmitted for a fee by telephone, fax, email, the internet, mobile or interactive digital TV and that they are generally paid for by users with the fees collected being shared in some way by the company carrying the premium rate service and the organisation responsible for the content. The Memorandum reminds us that PPP is responsible for the day-to-day regulation of PRS in the UK. In this respect the Memorandum does not tell us anything we did not already know.
The document then goes on to deal with how complaints should be handled by the two bodies. Both the ASA and PPP believe the organisation best equipped to handle a complaint should do so and when reaching such a decision as to which body should take on a particular issue, matters such as the nature and causes of public harm and enforcement efforts will be taken into account. The ASA and PPP have agreed that complaints should primarily be dealt with along the following lines:
- complaints to the ASA about premium rate services which are not thought to be within the ASA’s remit will be referred to PPP and the complainant shall be advised that these steps have been taken;
- complaints to PPP about ads which fall within the remit of the with the UK Advertising Codes will be referred to the ASA (and again the complainant shall be notified of this redirection of their complaint); and
- if there is doubt over whether the UK Advertising Codes apply to an ad that is brought to the attention of the ASA or PPP, the organisation receiving the complaint will liaise with the other with a view to agreeing the best approach in the circumstances.
It is also noted that this shall always be subject to any duty of confidentiality either party may have which might be owed to the complainant.
This is all common sense stuff really but what the Memorandum lacks is detail and some good working examples to show their views as to jurisdiction in relation to ads that sit on the line between the remit of the CAP Codes and PPP's Code of Practice (such as ads for premium rate subscription services for instance). The Memorandum speaks of common sense and predicable boundaries but some deeper thinking and illustrations would have been more usual.
How will the two bodies work more closely together moving forwards?
The ASA and PPP agree to provide "relevant support" to each other to enable them to discharge their regulatory responsibilities in areas where they have mutual interests. This refers in particular to ads for a premium rate service or which otherwise include a PRS number or shortcode. They want consistency in decisions reached and want to avoid the situation of both the ASA and PPP adjudicating differently on the same ad and see that if this is achieved then so will trust be built in premium rate services regulation across the board.
No further guidance is provided however as to what the support to be provided will consist of and how their co-operation shall differ from what it has been in the past. The Memorandum does however specifically refer to the provision of information and it is noted how both parties shall (where legally possible) share information regarding:
- complaints received which relate to ads containing a premium rate element;
- how complaints relating to such ads are investigated; and
- adjudications, policy and any other documents "deemed to be relevant".
The information to be shared relating to complaint adjudications will be shared prior to any public dissemination of such information but it is not clear what use each body will make of such information. For instance will they use it for the basis of their own precedents where similar complaints that reach their doorstep are concerned? Will this information sharing assist to ensure consistency in their decision-making processes or will they just be gathering such information for statistics and research purposes only?
Why this matters:
Both parties appear keen to try to avoid duplication of effort and they want to provide all parties associated with, or interested in, premium rate services (including the public, government and the media) with a better idea of which regulator deals with what. However, what has been released is a Memorandum document which is so brief and high level that it does not really serve to let us know anything material. Our understanding of how the parties shall work together going forward is not much clearer than prior to the publication of the Memorandum and so it can only be hoped that the ASA and PPP have thought through the details in some more detail behind closed doors otherwise it is unlikely that the public confidence they are seeking will be achieved in the short term.
The ASA and PPP have announced that they intend to review the effective operation of the Memorandum on an annual basis and so time will tell whether we see any changes in their practices from this point forward.