England: The ASA's new remit to regulate marketing messages on websites
The Advertising Standards Authority ("ASA") is the UK's independent regulator of advertising across all media, including via television, print, the internet and radio.
Pursuant to the various self-regulating advertising codes that it enforces, it looks to ensure that all advertisements are, inter alia, legal, decent, honest and truthful.
From 1 March 2011, the ASA will have new powers to regulate (via the CAP code) the marketing communications of businesses operating from the UK on their own websites and on other non-paid-for space online under their control (e.g. messages they post on Facebook or Twitter or other social networking websites). Its powers will extend to cover all business sectors and all businesses, regardless of size, and all of the rules in the current CAP code will apply (e.g. the obligation to make sure that all marketing messages are truthful and not misleading).
In basic terms, if, as a business, you post an advertisement or marketing communication on your website or on, for example, Facebook or Twitter, that is directly connected with the supply or transfer of goods or services (i.e. if its intention is to assist you to promote and sell a product or service that you offer), or opportunities or gifts, or that which consists of a direct solicitation of a donation as part of your own fund-raising activities, then the communication will have to comply with the CAP code.
The ASA has announced that once it has these new powers it will be looking, in particular, to eradicate misleading and untrue marketing and advertising communications made on the websites of businesses operating from the UK.
At present, if a marketing communication is in breach of the CAP Code, the marketer responsible is told by the ASA to amend or withdraw it, and most do. If they do not, sanctions can be applied. These include adverse publicity arising from an ASA adjudication, pre-publication vetting by the CAP Copy Advice team and the withdrawal of trading privileges, including media space. On the very rare occasions that compliance with the CAP Code cannot be secured, the ASA may, depending on the nature of the breach, refer a non-broadcast 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.
From 1 March 2011, there will be a number of new sanctions. These involve:
- Providing details of an advertiser and the non-compliant marketing communication (appearing on the advertiser’s website or in other non-paid-for space online under the advertiser’s control) on an ASA microsite, to which the ASA may make a particular effort to draw public attention;
- Removing, with the cooperation of the search engine, paid-for search advertisements that link directly to the page hosting the non-compliant marketing communication (either on the advertiser’s website or in other non-paid-for space online under the advertiser’s control); and
- Placing paid-for advertisements on internet search engines that highlight the continued non-compliance of an advertiser’s marketing communication and link through to the ASA microsite described above.
The message from the ASA is clear: either comply with the CAP Code or face the consequences. Therefore, all businesses urgently need to carry out audits of their online marketing communications and advertisements to make sure they comply with the CAP Code.
If you wish to discuss this email, or any other brand or trade mark issue, please feel free to contact either your usual IP advisor at Ashfords. Similarly, should you wish to receive editions of the Ashfords' Brands Bulletin by email, please contact firstname.lastname@example.org
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