ASA ruling offers 'helpful clarification' on user generated content and CAP Code compliance, says expert

Out-Law News | 16 Sep 2013 | 3:49 pm | 2 min. read

Online advertisers do not have to hold evidence to show that user comments can be substantiated and that they comply with UK advertising rules where the comments have not been "adopted and incorporated" into marketing material, the Advertising Standards Authority (ASA) has confirmed.

In a ruling issued earlier this month, the watchdog said that it could not uphold complaints about user reviews where they took the form of "organic user-generated content" and where businesses had not used them as part of promotions. It is outside of its remit to assess content of that nature, the ASA said.

Expert in advertising and compliance George Campbell of Pinsent Masons, the law firm behind Out-Law.com, said that the ruling provided "helpful clarification" to businesses advertising online.

In the particular case, the ASA rejected complaints made by an individual who claimed that an advertising website had breached the CAP Code because they did not believe the reviews were written by consumers.

Under the UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing (CAP Code) marketing communications that "materially mislead" consumers or are "likely to do so" are prohibited.

The Code also prohibits advertisers from using promotional material that "falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession". The rules require that the "commercial intent" of marketing communications is clearly set out if it is "not obvious from the context".

Under the UK's Consumer Protection from Unfair Trading Regulations pretending to be a consumer and giving yourself a positive review is 'an unfair commercial practice'. This is a criminal offence and business proprietors are potentially liable for an unlimited fine and a prison sentence of two years.

The practice, known as 'astroturfing' as it fakes grass-roots support for a product or service, is also contrary to the CAP Code, as the Code requires that marketing is fair, legal, decent, honest and truthful.

Under the Code, marketers are required to have "documentary evidence" in order to prove claims they make in ads. That evidence must be "likely" to be considered as "objective" by consumers and be "capable of objective substantiation". The CAP Code states that the ASA "may regard claims as misleading in the absence of adequate substantiation".

"The ruling by the ASA offers a helpful clarification of the rules around user-generated content," Campbell said. "Advertisers that adopt user-generated content, such as user reviews, to promote their goods or services online need to be able to hold evidence to support any claims made within those comments. Equally, they need to ensure that the content complies with other rules under the CAP Code, such as those relating to causing harm and offence."

"In this case the user comments complained about were contained on a sub-page that internet users could click through to from the web page advert. However, the ASA's view that user reviews would be outside of its scope for assessing where they are 'organic user-generated content and had not been adopted and incorporated into the marketing communication' would equally apply where the reviews were contained on the same page as the advert," Campbell said.

"In such a case, though, where on a web page review comments feature, and the prominence given to them, may be factors the ASA would consider when determining whether the review comments had been 'adopted and incorporated' into promotions and whether, therefore, they should be scrutinised for CAP Code compliance," he added.