Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.

Because websites, apps, and social media and retail platforms tend to be accessible to advertisers and consumers in multiple countries, not all online ads will fall within the ASA’s remit.  This advice article explains how or whether the ASA would regulate online ads that fit the following descriptions:

What types of online ads are in the ASA’s remit?

Non-paid-for marketing communications from or by marketers with a UK registered company address
This definition refers to online ads in ‘non-paid-for’ space. For example, when a brand publishes a communication on their own website or social media page, this would count as a ‘non-paid-for’ communication. If the brand then paid for their social media post to be ‘boosted’ or ‘promoted’ to a wider range of consumers by the platform, it would no longer count as ‘non-paid-for’. (There is a separate test of whether ‘paid-for’ ads are in the ASA’s remit, explained below.)
When assessing whether ads in non-paid-for spaces are regulated by the ASA, the deciding factor is whether the brand has a registered company address in the UK.  
Example: A UK consumer sees an ad on the Facebook page of a company that is registered in the USA, and which has no UK registered company address. The ad would not fit the definition described above, and so it would only be in the ASA’s remit if it fit another definition.

Marketing communications appearing on websites with a “.uk” top-level domain
This test is relatively straightforward. If the website’s top-level domain ends in “.uk”, then any marketing communications on the site will be regulated by the ASA.
This doesn’t mean that the ASA regulates all of the content of “.uk” websites, since it still needs to count as a marketing communication to fall within the ASA’s remit.  Editorial content, material relating to ‘causes or ideas’, and any other UK media that the ASA doesn’t regulate will continue to be excluded from the ASA’s remit. 

Paid-for marketing communications, which target UK consumers
This definition exclusively refers to ads that appear in paid-for spaces. These are any online spaces that are normally reserved for ads and sold as ‘ad space’. When assessing whether ads in paid-for spaces are regulated by the ASA, the deciding factor is whether the ad targets consumers in the UK.
Paid-for ads can target UK consumers through the targeting tools that the ad space publisher makes available to advertisers. If either location-based or interest-based targeting tools are used in a way that results in the ads being displayed to people in the UK, they are likely to fit this definition. 
Ads could potentially also fit this definition by including content that is specific to people in the UK. The following factors would make the ad more likely to be seen as targeting UK consumers:

  • prices being given in sterling;
  • consumers being provided with a UK telephone number or geographic address for support;
  • consumers being invited to visit physical premises in the UK; and
  • the marketer being subject to regulation under UK regimes (for example, being subject to regulation by the Gambling Commission). 

If paid-for ads fulfil the above criteria of targeting UK consumers, the ads would fall within the ASA’s remit. 

What happens to complaints about ads that don’t fit into these categories?

The ASA may still receive complaints about the ads that fit the following descriptions, but such ads would not fall within the ASA’s remit:

Non-paid-for marketing communications from or by marketers with a non-UK registered company address, which target UK consumers
Most EU member states and a number of non-EU nations (including the UK) are members of the European Advertising Standards Alliance (EASA). The group operates a cross-border complaints referral system for all of its members. If an advertiser is registered in one of these countries, the ASA would use this cross-border referral system if it received complaints about ads that fit the above description.
In some cases, marketing communications may originate from countries that don’t operate an equivalent cross-border complaints referral system. For example, no equivalent system is currently in place for the USA or China. If the ASA received a complaint about an ad that fits the above description, but the ad is from an advertiser based in one of these countries, the ASA will take what action it can.

Paid-for marketing communications from or by marketers with a non-UK registered company address, which don’t target UK consumers
If the advertisers are registered in a country that operates a cross-border complaints referral system, the ASA would refer this type of complaint to the relevant authority in that country. 
If not, the ASA would not take further action, because the ad does not originate from the UK and does not target UK consumers.

Are there any exceptions?

Paid-for marketing communications from or by marketers with a non-UK registered company address, which target UK consumers, in circumstances where the ASA is unable to take action
In some exceptional cases, a paid ad may target UK consumers, but the ASA is unable to take appropriate action against the advertisers for practical reasons. In those cases, and if the company is registered in a country that participates in the cross-border referral process, the ASA is likely to refer the complaint to the relevant authority in that country. 
 

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