Out-Law / Your Daily Need-To-Know

Advertising rules extend to website content from March 2011

Out-Law News | 01 Sep 2010 | 11:28 am | 3 min. read

Adverts and marketing communications by companies on their own websites and on free services like Facebook and Twitter will fall within the remit of the UK's advertising watchdog for the first time from 1st March 2011.

The Advertising Standards Authority (ASA) and the Committee of Advertising Practice (CAP) announced the changes to the industry rulebook, the CAP Code, today.

The CAP Code already applies to ads in newspapers, catalogues, posters and other media. Until now, though, its digital remit covered only ads in emails and text messages and ads in paid-for space, such as banner and pop-up ads or keyword advertising on search engines.

From 1st March, the CAP Code will apply to:

"Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities."

The term "non-paid-for space online under [the advertiser's] control" covers advertisements and other marketing communications on advertiser-controlled pages on social networking websites, said CAP and the ASA.

Between now and March the ASA and CAP say they will raise awareness and educate businesses on the requirements of the CAP Code, particularly amongst those that may not previously have been subject to ASA regulation.

The new remit focuses on material which constitutes an advertisement or other marketing communication. Some other forms of communication, such as editorial, press releases and investor relations material will remain outside the jurisdiction of the ASA.

CAP and the ASA said the new rules apply to those marketing communications that are intended to sell something.

"It is understood that a marketing communication may set out to sell something in a myriad of different ways," they said in a statement. "It need not necessarily include a price or seek overtly an immediate or short-term financial transaction or include or otherwise refer to a transactional facility."

CAP has published a 14-page paper on interpreting the new rules. It explains that determining whether material constitutes an ad or other marketing communication that falls within its remit requires a careful assessment of its content and the context in which it appears.

"The assessment must consider, on a case-by-case basis, whether it can be reasonably assumed that the advertiser intended to sell something (the primary purpose of a marketing communication)," says CAP's guidance. "The following additional criteria may assist stakeholders in these assessments but they do not alone determine what can be properly accepted as constituting an advertisement or other marketing communication. For example, depending on the context in which it appears, an advertisement or other marketing communication is likely to consist of commercial communication that:

  • has appeared in the same or very similar form as an advertisement in paid-for third party space, or
  • may include, or make easily accessible, an 'invitation to purchase' as defined by the Consumer Protection from Unfair Trading Regulations 2008 ('a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase.')"

User-generated content may also fall within the remit where it has been adopted and incorporated within the website owner's own marketing communications, according to the guidance. Video games used to promote a product or organisation, known as 'advergames', will also fall within the new remit.

Investor relations material is specifically excluded from the scope. 'Heritage advertising', where it is not part of their current promotional strategy and is placed in an appropriate context, is also excluded.

"Amendments to the CAP Code may have rendered past advertising campaigns non-compliant," says CAP's guidance. "In some instances, such campaigns may be iconic material of value and relevance to the brand owner's website, and should therefore be permitted in an appropriately identified part of the website."

The scope also excludes marketing communications promoting causes or ideas "but does explicitly apply to marketing communications which consist of direct solicitations of donations as part of fund-raising activities," according to CAP and the ASA.

The CAP Code's existing sanctions will apply to the new remit. These include adverse publicity arising from an ASA adjudication, pre-publication vetting by the CAP Copy Advice team and the withdrawal of trading privileges. If compliance with the CAP Code cannot be secured, CAP may, depending on the nature of the breach, refer a marketer to the Office of Fair Trading for action under the Consumer Protection from Unfair Trading Regulations 2008 or the Business Protection from Misleading Marketing Regulations 2008.

New sanctions will also be available from 1st March. These include:

  • Providing details of an advertiser and the non-compliant marketing communication on an ASA microsite.
  • Removing, with the cooperation of the search engine, paid-for search advertisements that link directly to the page hosting the non-compliant marketing communication on the advertiser’s website or in other non-paid-for space online under the advertiser’s control.
  • Placing paid-for advertisements on search engines that highlight the continued non-compliance of an advertiser’s marketing communication and link through to the ASA microsite described above.