Today’s announcement that the digital remit of the ASA is to be extended to cover marketing communications online is the result of a long and carefully considered project that involved a wide cross-section of UK industry. 

The extension comprises three main components: scope, sanctions and funding, and will be supported by a training and awareness programme to help website owners get their marketing communications in line with the requirements of the Code in time for 1 March 2011.

Scope

From 1 March 2011, 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 new remit focuses specifically upon material which can be properly accepted as constituting an advertisement or other marketing communication. It acknowledges that websites can include marketing communications and other types of communication including, for example, editorial, public relations e.g. press releases and investor relations material that must properly remain outside the jurisdiction of the ASA.

There are three important aspects of the scope:

  1. It applies to marketing communications 'directly connected with the supply or transfer of goods, services' etc: this phrase conveys the primary intent of marketing communications coming within the extended digital remit: to sell something. It is understood that a marketing communication may set out to sell something in a myriad of different ways. 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. 
  2. The promotion of causes or ideas: The scope doesn’t cover 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. This takes into account of the potential for consumer detriment, especially financial loss, arising from these marketing communications.
  3. 'non-paid-for space online under [the advertiser's] control': this phrase covers, although not exclusively, advertisements and other marketing communications on advertiser-controlled pages on social networking websites. Social networking websites have a significant consumer reach, are popular with children and young people and play an increasing role in public policy debates.

Marketers are encouraged to read the accompanying document: Extending the Digital Remit of the CAP Code, which details what material is specifically excluded and how they, CAP and the ASA may go about determining whether a marketing communication falls within the scope of the new remit.

Sanctions

We already know that if a marketing communication is considered in breach of the Advertising Codes, the vast majority of marketers willingly undertake to amend or withdraw the marketing communication. If they refuse, CAP’s present sanctions are very effective at gaining compliance and these will apply to the new remit. However to strengthen CAP’s ability to secure compliance on websites and in other non-paid-for space online under the advertiser’s control, CAP’s member bodies have agreed new sanctions:

  • Providing details of an advertiser and the non-compliant marketing communication on a special part of the ASA website. 
  • Removal of paid-for search advertising – ads that link to the page hosting the non-compliant marketing communication may be removed with the agreement of the search engines. 
  • ASA paid-for search advertisements - the ASA could place advertisements online highlighting an advertiser’s continued non-compliance.

Funding

The industry has agreed to apply the standard 0.1% levy on paid-for advertisements appearing on internet search engines through media and search agencies. This is an extension of the existing funding mechanism in other media that pays for the ASA and it will be supplemented initially with seed capital from Google.

What happens now?

Training

The ASA will start enforcing the new remit on 1 March 2011. This means that there is a six month period of grace during which the ASA and CAP will raise awareness and educate business on the requirements of the CAP Code, particularly amongst those who may not previously have been subject to ASA regulation. 

Review

The announcement also signals the start of an ongoing and lengthy review period, which invites comments from all stakeholders about any aspect of the remit extension with a pledge to act, as appropriate, on the significant comments received.

Feedback should be addressed to the Secretary of CAP and sent to [email protected].

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