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Staying on the Right Side of the ASA

As many of you will know, from March 1st 2011, the Advertising Standards Authority (ASA) have extended their digital remit to include all marketing messages and communications online. This covers their own websites and includes social media platforms such as Facebook and Twitter.

The Advertising Standards Authority (ASA) are the UK’s independent watchdog committed to maintaining high standards in advertising. They are self regulated and funded by the advertising industry who are required to contribute 0.1% of their media spend to regulating the advertising industry. The ASA’s authority is recognised by the Government, the courts, other regulators such as the Office of Fair Trading (OFT) and Office of Communications (Ofcom) as the established means of consumer protection from misleading advertising.

The Committee of Advertising Practice (CAP) are the body responsible for writing the CAP Code which is governed by the ASA. Their purpose is to ensure the industry remained honest, truthful and within legal guidelines. Basically, to ensure that what you see is what you get.

Unbelievably, until March the 1st the digital remit only covered paid for advertising such as E-mail marketing , banner and pop-up advertisements, PPC, commercial classified advertisements and paid-for listings on price comparison sites so out side of these paid for adverts online marketing was entirely unregulated and advertisers could get away with saying what they liked. The new rules will effect all businesses no matter what the size or nature.

What are the benefits?

Firstly, the new rules should go at least someway to ensuring what we see online is truthful and reducing the amount of outright dishonesty in marketing messages. It will also be effective in making online marketing a more equal playing field as currently ethical marketers could be losing out to competitors who sound amazing and lure in unsuspecting clients with far cheaper prices which are not anywhere near the truth! The good that about the guidelines is that if you are aware of a competitor doing this you can report them and they will have to be open and truthful about their prices and services.

Why has this only just come in to place?

The extended CAP code has come into play this year for a number of reasons. Firstly and probably most significantly as 2010 was the 1st time online advertising spending in the UK exceeded TV yet this was largely untracked. Unsurprisingly, the Internet is now the second most complained about medium after TV. In the last 2 years, Over 3500 complaints regarding websites that fell outside of remit. For these reasons, even the Conservative Party pledged to ‘Tackle currently unregulated marketing on corporate websites targeted at children’ and ‘to shut this regulatory loophole and clamp down on irresponsible online marketing targeted at children’.

The ASA gave advertisiers a 6month grace period from September to get to grips with what the new rules mean to them and have been offering online site audits to marketers who are unsure.

To fund the new remit, 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 has been spent on an advertising campaign including TV ads and posters around stations and on billboards.

The Official line from CAP….

“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.”

So what does all this actually mean and how will it affect me?

There are now a number of things that you will need to be careful of when considering your marketing activity:

1. Watch out for claims you can’t back up

In theory everyone should have been doing this anyway! But you must now substantiate not just everything you say or write on your site, social media platform or blog, but also everything everyone else does too.

3.18 … Quoted prices must include non-optional taxes, duties, etc.

3.7 … must hold evidence for any claims that consumers are likely to believe are objective

3.17 … price statements must not mislead by omission and relate to product listed

3.9 … not stating significant limitations or qualifications

2. Social media and User generate content

For the first time, Social media platforms fall under the remit as “ Non Paid for Space under Advertisers control” something that will undoubtedly effect they way we think about our social media strategies.The biggest challenges for marketers regarding social is with regards to User generated content (UGC) and distance marketing rules.

The first big consideration is using content from your Facebook page, Twitter account , blog or forum for your marketing materials. Previously, you could quite rightfully take positive comments or Tweets and use them for self promotion. This, along with using photos that have been posted by users on Facebook, even if you are tagged in them is no longer allowed.

Another major factor is ensuring everything you Tweet or post can be substantiated at the time you post it. This includes ReTweeting or even liking something a fan has written about you that at the time you engage with that comment is no longer true.

Top Shop for example recently go into trouble for ReTweeting a comment someone made about how great they were and how they had just bought a skirt in the sale. By the time Top Shop ReTweeted the skirt was no longer in the sale so the comment was unsubstantiated.

The CAP code refers to this as, “Inaccurate or misleading copy that contains a claim written by the advertiser themselves or by the customer and then reused by the advertiser” .

3. Distance Selling Marketing

The inclusion of Distance selling marketing communications in the online remit essentially means all promotions, Tweets and comments about a product must include:

9.2.1 the main characteristics of the product

9.2.2 the price, including any VAT or other taxes payable (see “Prices” in Section 3: Misleading Advertising, and payment arrangements

9.2.3 the amount of any delivery charge

9.2.4 the estimated delivery or performance time (see rule 4.9.3) and arrangements

9.2.5 a statement that, unless inapplicable (see rule 9.6), consumers have the right to cancel orders for products. Marketers of services must explain how the right to cancel may be affected if the consumer agrees to services beginning less than 7 working days after the contract was concluded.

This is virtually impossible to do in 140 characters and so could essentially change the way we use Twitter and Facebook for promotions. However it is still very unclear how strictly this will be enforced.

4. Forums and reviews

Moderating out negative comments and only showing positive ones was one of the specific examples given by the ASA of situations to which the code applies. Leaving aside all the usual reasons why this is a damaging practice, doing so now guarantees that your review system will be eligible for scrutiny from the ASA.

Fake Reviews where marketers actively plant comments acting as ‘consumers’ is another widely used tactic that is now be a banned by both the ASA code and under European Law.

5. Blogging and commenting

If you are undertaking blogger outreach as part of a campaign, then you should ensure that any commercial benefit received by the blogger is clearly out in the open. This should be the case anyway, and brands that have not historically followed this common sense approach have seen it backfire on them. Another example of this would be if a blogger, with the approval of your company is fundraising on their blog and you have editorial control over the content – particularly, if the blogger has been paid (monetarily or another benefit such as tickets to an event, link exchange, etc).

It would be advisable to ensure everything has an audit trail is out in the open so blog readers are informed upfront.

The same thing goes for using a pen name…. although this is not entirely made clear by the ASA, if you are using a pen name to write content for a client or to comment then that would potentially be regarded as failing to disclose information or falsely impersonating someone.

So What you CAN still do within the CAP code?

-press releases and other public relations material

-editorial content

-corporate reports

-investor relations material

Natural listings on a search engine or price comparison site, will not be included

“heritage” advertising (e.g. old Guinness advert videos) as long as they’re placed within appropriate context.

Poppin’ a cap in your ASA : Are the new codes enforceable?

This is the big questions and the answer is currently very unclear and like every set of new regulations, advertisers and agencies will have to wait for the first companies to be rapped on the knuckles. Underpinning the ability of CAP to maintain and improve high standards in marketing communications is an effective range of sanctions. If a marketing communication is in breach of the Advertising Codes, the marketer responsible is told by the ASA (or the CAP Compliance team) to amend or withdraw it. The vast majority of marketers willingly undertake to do so. If they do not, sanctions are applied, although the possibility of imposing sanctions is often sufficient to secure compliance with the CAP Code.

Firstly and most significantly, the ASA will not be actively policing the remit. To get in trouble, someone will have to report you and the ASA will then have to investigate.

The enforcement process is fairly simple;

- Informal warning at first asked to withdraw Ad.

- If you fail to remove it, the ASA will report you to the office of fair trade.

However, if you still refuse to comply the penalties are tough;

-They have a black list page on the site where any non comlying companies will be featured. This is an enhanced name and shame policy – 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.

-You may get to feature in ASA paid-for search advertisements – the ASA could place advertisements online highlighting an advertiser’s continued non-compliance which will clearly have a knock on effect for an advertisers reputation.

As a result of such strict and potentially damaging consequences the ASA have seen 97% compliance rate in previous offline broadcasting and would expect to see something similar online.

How can I be sure I am staying with the remit?

CAP Services will be providing training and advice to help website owners and agencies get to grips with the new rules. However this costs a hefty 8k so it would definitely be worth getting to grips with the rules yourself.

I would recommend signing up for CAP newsletters or watching the online webcasts which will keep advertisers up to date with the progression of the remit and give them a better idea of how the rules will be enforced.

-Understand what is and isn’t acceptable to the ASA

-Keep up-to-date with the latest developments and guidance in ad regulation

- Help avoid reputation and commercial damage that can come with an upheld ASA adjudication.

See below for Jo and Graeme’s full presentation on the new ASA regulations from Brighton SEO. Our Creative Director Kelvin Newman is delivering a presentation at SMX Advanced in London next week about ASA regulations and their impact on digital marketing.

View more presentations from brightonseo

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