Event report: The ASA- Expanding to cover internet marketing further

15/09/2010

As part of a major shake-up in UK marketing regulation, UK firms will soon have to ensure content on their websites and social network pages comply with the same rules as their paid-for advertising. But how will this be policed? And with brand sites now carrying their own press releases and staff blogs, just what’s the difference between ads and editorial these days?

In the latest addition to our Director’s Dinner series, Netimperative invited Guy Parker, CEO of the Advertising Standards Authority, to outline the extension of the regulator’s remit, which places online marketing under greater scrutiny than ever before. Robin Langford, Editor at Netimperative, reports.

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From March next year, the rules covering misleading advertising, social responsibility and the protection of children will apply in full to all online marketing by all sectors, businesses and organisations, regardless of size. So how do you ensure you don’t fall foul of the new rules yourself? What are the danger signs? And what are the penalties if you’re found to mislead consumers? This month’s dinner speaker was just the man to answer these questions.

For the past two years, Guy Parker has been involved heavily in supporting the industry in both the thinking behind the remit extension and its detailed preparations. Addressing the dinner guests at The Hospital Club in Covent Garden, Guy was keen to point out that the change in the ASA’s powers did not extend to the ‘entire internet’, but it was still a dramatic shift in online marketing regulation nonetheless.

The ASA's current remit online includes ads in paid-for space and sales promotions wherever they appear. Guy explained that the extension now means full advertising regulations will now also apply to parts of the internet that are ‘free of charge’ (unlike paid adverts), such as brands’ own websites and social media spaces such as Twitter and Facebook.

The online extension has "the protection of children and consumers at its heart", but still maintained an effort to protect freedom of speech online. This means that the rules will focus on website content that amounts to advertising or another form of marketing communication and that sets out to sell products. It would not cover journalistic and editorial content, Guy said.

The Committee of Advertising Practice (CAP), the body responsible for writing the regulations, decided to extend the ASA's powers in response to a formal recommendation from a wide cross-section of UK industry. The ASA will have the ability to remove paid-for links to pages hosting a banned ad, with the agreement of search engines.

Online complaints- Honesty versus decency

Guy said the ASA has received over 4,500 complaints about advertising on websites from the public since 2008. A significant bulk of these complaints concern misleading claims made on companies’ webpages- something that is not currently covered under the ASA remit. “These complaints are about content that the public sees as advertising, even though it is not paid-for in the conventional sense,” Guy said.

The extension of the CAP Code was a response to this growing number of complaints, but Guy added there was a political imperative too, with growing demand from Government for tighter rules on web marketing. Intriguingly, the issues of concern to the Government – marketing for alcohol, foods high in fat, salt and sugar and so on – were rarely the subject of complaints from the general public. “If you drew a Venn diagram, there wouldn’t be much of a cross-over between the two,” Guy explained.

George Kidd asked Guy about the nature of complaints online versus offline (such as TV commercials or newspaper ads). He suspected that whilst the majority of offline complaints would concern taste and decency, the majority of online complaints would be for misleading claims. George presumed that a consumer choosing to visit a website will be less offended by its content, than a risqué TV ad which invades their viewing time. Guy agreed, with ASA figures showing that 80% of complaints about advertising on websites are about misleading issues, higher than the 60% in conventional non-broadcast media and 40% in TV and radio.

Jane Franklin of Immediate Future said these problems are amplified on social media sites, where there are far more grey areas about ownership and the moderation of user comments. She recalled last year’s Habitat fiasco, where the furniture brand allowed an unfortunate intern to control their Twitter page, who in turn used popular (and entirely inappropriate) hashtag trending topics to promote the brand and its offers.

Types of content- where to draw the line?

The extension of the ASA’s remit represents a radical shake-up of UK marketing, and one that will affect every business, large or small in the UK. This is no small undertaking, and Guy said the real hard work over the past 2 years has been how to draw a line between advertising and other content like editorial.

The remit does not give the ASA a free reign to regulate all websites, but it does cover marketing messages within them. Depending on the context, this includes claims and promotions on commercial and corporate websites, as well as social network pages created by the brand. This could include content on Twitter accounts, and company-created hashtag promotions. The remit will also apply to advertising on mobile sites and apps as well as branded games and viral videos.

So what isn’t included? Corporate communications such as annual or CSR reports, editorial material such as news and PR material such as press releases fall outside of the new ASA remit.

Given the international nature of the web, George Kidd also questioned how companies operating overseas could come under ASA jurisdiction. With online commerce growing ever more popular, many companies sell overseas. What of those international brands with sites that mislead UK consumers? Guy said the remit extension was limited to UK advertising - advertising by organisations operating from the UK. It was important that the public understood that the ASA could not and should not police all advertising on the internet. If advertising was aimed at the UK public but originated from overseas, the ASA might do what it could to sort out any problems, but that would depend on its relationship with the equivalent regulatory organisation in the country of origin of the ad. There was the possibility that the ASA
“would only draw attention to the fact that we can’t do anything about some dodgy advertising originating overseas,” Guy said, but the ASA was at least able to flag up problems to the wider public and alert the appropriate authorities in the country of origin.

Jane Franklin asked about the increasing role of ‘influencers’ in social media, bloggers and Twitterers that were often sponsored by brands and were deemed to have a strong sway over their followers in terms of influencing their buying habits, therefore a fast-track way for brands to secure bigger audience. Guy said that would depend on the nature of the relationship between the influencer and the brand. If the former was paid by the latter, it might well be advertising. If not, it would not. He hoped that brands were ensuring that influencers who were being paid were disclosing that since it was now a criminal offence under Schedule 1 of the Consumer Protection from Unfair Trading Regulations (CPRs) to pay for ‘editorial’ content in the media to promote a product without making that clear.

Danny Meadows-Klue then moved the discussion on to the role of search marketing, and if the distinction between search engine optimisation and sponsored search would become blurred as the ASA targets ‘non paid for’ advertising on the net. For example, if a brand pays an agency to tweak its site structure and content to increase the brand’s visibility on Google, would the content used to boost these rankings be classed as advertising under the new remit, and therefore come under scrutiny for being decent and factual? Guy said the current distinction was between natural and paid search listings, but he could absolutely see how fine the boundary was given the prevalence of SEO. He thought it would be interesting to see during the two year review period whether this was a source of concern to the public.

Educating the industry- the challenges ahead

Referring to the definitions between ads and editorial, George Kidd thought that rather than distinguishing the two via format, shouldn’t the ASA look at ‘principles and intent’ of the content to judge whether it falls under the new ASA remit.

Guy said the problem with that method was that it can only work on a case-by case basis and would be reactionary rather than preventative. He said that people wanted to know where the line fell before they embark on a project. Distinct boundaries, at least on the more obvious and prevalent methods of communication, were needed, even if not every boundary could be delineated to the nth degree in such a fast moving environment. Guy admitted that one of the ASA’s big challenges was how to communicate the remit and how to manage expectations.
One of the biggest problems facing the ASA is the tens of thousands of small businesses, many of them yet to have a web presence that will be unaware of the new rules.

These SMEs lack the time, resources and manpower of the larger companies, and will either be unaware of the changes to the rules, or unsure of how their own sites will be affected. Guy said the ASA will be running a major UK ad campaign to raise awareness and give advice to these small companies, but acknowledged it will be a big task that will require industry help. He hoped agencies will see it as part of the service they provide to their clients: helping to ensure compliance with the Advertising Code.

As for what might happen if they get it wrong, Guy said the ASA would be bending over backwards to help companies get it right. The last thing it wanted was to pounce on a small business that had simply been unaware of the rules. It would resolve cases informally wherever it could. It would assist in numerous ways through CAP Services: bespoke copy advice on advertising; an online database of advice; training sessions on the new remit; advice:am training sessions on specialist subjects; bespoke seminars for companies; and regular e-newsletters highlighting the big ASA decisions.

(For more information on CAPs copy advice, click on the logo below)
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But if advertisers were unwilling to comply with the rules, the ASA would take action. As well as publishing the rulings as usual, it could name and shame repeat offenders in a dedicated , search engine optimized, part of its website. It can ask the search engines to pull paid ads that link to dodgy advertising pages. It can even run its own paid-search campaigns highlighting an advertiser’s refusal to comply. And those sanctions sit on top of the usual sanctions available to the ASA, which include the issuing of Ad Alerts to the media and referral to the OFT under the CPRs.

Guy said the ASA was better than ever at helping the industry to comply – it provided advice and training on over 45,000 discrete occasions in 2009 – but the remit extension came armed with teeth for persistent offenders.

For more details on the ASA’s new remit , click here.

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