subject: Website regulation hits the UK via the ASA [print this page] Website regulation hits the UK via the ASA
This article is intended for all website owners and anyone considering having a website designed. For the first time in the UK, effective from the 1st of March this year (and therefore now in force), the ASA (Advertising Standards Agency) has extended its remit to include online media in its codes, but what does this really mean ?
There has been some publicity informing the public that this code was coming, I initially heard it on a radio station, but I am not sure as to how widespread this communication actually was as I had not heard or seen this on any other media. The first thing to note is that this is an extension of existing codes that have existed for a long time for other forms of media, the code is known as the CAP (The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing) code. Finding precise information on this is not so difficult, it can be found on the ASA website (links at the end of the document), but translating this information into a real-world understanding is not so easy, particularly thinking of smaller businesses who have neither compliance or advertising resources. To this end I have given my view of how it reads but until actual sanctions are taken by the ASA no-one will really know.
Will this really affect smaller businesses ?
One has to say YES, potentially, maybe! Historically smaller businesses will not have had to worry too much about ASA regulation as advertising budgets, and therefore activity are relatively low across the small business landscape, maybe being linked to printed advertising in popular directories or local/trade periodicals. The marketing landscape is now significantly different for smaller businesses with the cost of ownership of a website being relatively low and far more productive compared to more traditional forms of advertising and therefore anyone using a website for marketing communications (i.e. all of us) will be bound by the same rules that covered the big companies in their non-website campaigns. So yes, smaller businesses will be affected. The unknown is whether or not the ASA will be able to handle a deluge of complaints from the small business competitive landscape or whether they will have to apply some form of de-minimis filtering. The latter is certainly not in place at present in the code and is unlikely to be made public even if it were.
It should also be noted that neither the size or legal structure of the business affects whether or not you will be regulated:
"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 just about everything is covered! We cover this in more detail throughout the rest of this article but for now, "non-paid-for space online under their control" refers to social networking sites.
Should we panic and get in touch with our web designer to review and change our website ?
NO, as said earlier, until the ASA actually takes sanctions against someone, we will not truly know where their focus will be. In my view there are two important aspects of this new extension to the code:
There is a six month period of grace, during which according to the code "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".
The ASA has announced that the code will be subject to "an ongoing and lengthy review period".
Now you can read this as you will, but as I read it, the ASA are not 100% sure as to how this code will pan out in the real world, and quite rightly so they simply can't know at this stage but the principle is the important aspect. So if you were to fall foul of the code between now and August 2011, and be caught by the ASA, one has to read into this that you will be informed as to why and asked to change the offending object, rather than face specific sanctions. This code is intended to protect end users, more detail below, and this can not be a bad thing. In my opinion we should wait and follow the communications and sanctions the ASA issue on the back of this code and adapt our websites accordingly as things become clearer. That said, if your website includes statements such as "the best web designer in Warwick", you should probably start changing them.
What actually is covered ? Can't I just have a Facebook page and say what I want to my friends ?
Anything that constitutes an advertising or marketing communication is included and regulated under the code, irrespective of the delivery mechanism, if it is under the control of the advertiser. This includes any form of online media including websites, facebook pages, twitter sites etc.. In fact, any form of social networking is covered as there is a specific section of the code dedicated to this. The logic described in the code for this coverage is "Social networking websites have a significant consumer reach, are popular with children and young people and play an increasing role in public policy debates". So as one example, if you have a facebook page, personal or business, that you use to advertise or market your business, start being a little more careful about what you are saying and the claims you are making.
Other areas that you might not initially think of, that are covered by this code are advertisements in emails, banner and pop up advertisements, paid for search listings (i.e. pay per click advertising), commercial classified advertisements, paid for listings on price comparison sites, video games used to promote a product or service and user generated content.
This is a wide ranging code in its initial phase, there are however some exclusions. The ASA accepts that a website can include, either in its body or as downloadable documents, other forms of public relations communication such as press releases and investor relations material and these will continue to remain outside of the jurisdiction of the ASA. One should not of course use this as an excuse to try and bypass the aspects of the code. Other items that are specifically excluded from the code include classified private advertisements, editorial content, corporate reports, heritage advertising and more importantly natural listings on a search engine or price comparison site.
The specific scope of the code in its current form focusses on three things:
Marketing communications directly connected with the supply or transfer of goods or services. This is the primary area of the code and really speaks for itself. Be aware that this includes services as well as goods, to assume this is limited to e-commerce trading sites only would be grossly incorrect. Anyone who has a website or other form of online media under their control that is used that to sell something (i.e. promote their business or sell product, in whatever form) will be covered. This is a wide ranging section of the scope so structuring your website to appear that you are not promoting your business when in reality you are will not exclude you from regulation.
The promotion of causes or ideas. The important phrase here is "direct solicitations of donations as part of fund raising activities". Communications promoting a cause or idea are fine, and excluded, but any communication that invites a donation is regulated. Clearly this effects the charity sector but, in its current form, will also impact other areas such as the provision of open source software where donations are commonly utilised to fund development.
Non-paid-for space online under the advertisers' control. Whilst not restricted only to, this is intended to be a catch-all to cover all forms of social networking.
What if I host my website offshore ?
This will make no difference, you will still be regulated if you are a UK business. The only exclusion in the code is for marketing communication specifically made in foreign media.
What are the sanctions ?
Fortunately, this appears to be one of the more reasonable areas of regulation in the UK. The ASA are primariliy concerned with maintaining high standards in advertising in the UK. Were you to fall foul of this code, you will initially be informed and asked to either amend or remove the offending item. Should you do this, no further action will be taken (save for the matter may be in the public environment) and the ASA advises that the majority of code abuses are resolved in this fashion.
Should you fail or refuse to make the necessary amendments, then any of the following could apply:
Adverse publicity from an ASA publication and details of the sanction and your identity listed on the ASA website
Future pre publication vetting by the ASA
Withdrawal of trading privileges, including online media space
Removal of paid for search advertising with the co-operation of the search engines
Placing of paid for search advertising informing people of your non-compliance
Referral to the Office of Fair Trading
References
The original ASA announcment
ASA PDF Document: Extending the Digital Remit of the CAP Code
