Stephen Groom, 2 March 2011

1. New ASA Digital Remit
Stephen Groom
2 March 2011

2. osborneclarke.com
Context: other regulators of online advertising
• Office of Fair Trading and Trading Standards
e.g Consumer Protection from Unfair Trading Regs 2008 ("CPRs"), Business
Protection from Misleading Marketing Regs 2008 and Enterprise Act 2002
• Information Commissioner's Office
e.g Privacy and Electronic Communications (EC Directive) Regulations 2003
• Ofcom
e.g Communications Act 2003 s.130 persistent misuse of networks
• ATVOD
video on demand editorial content inc. sponsorship and product placement.
See ATVOD Rules & Guidance
• FSA
Financial promos online see OFT/FSA Online Sponsored Links guide
• And don't forget Facebook, Twitter etc own promo/website/brand
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3. osborneclarke.com
CAP Code – online remit pre 1 March 2011
• CAP UK Code of Non-broadcast Advertising, Sales Promotion and
Direct Marketing ("CAP Code") para I d.:
• "Advertisements in non-broadcast electronic media including but not
limited to":
– online ads in paid for space e.g. banner, pop-up and in online video
– marketing emails and sms/mms
– paid-for search listings
– online sales promotions and prize promotions
– in-game ads
– promotional video games ("advergames") in paid-for ads
– ads transmitted by Bluetooth
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4. osborneclarke.com
CAP Code – online remit from 1 March 2011
• All pre 1 March 2011 coverage at I d PLUS (I h):
• 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.
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5. osborneclarke.com
Sanctions
• Existing
– Bad publicity from "complaint upheld" finding
– Inability to make further use of communication in question
– Pre publication vetting by CAP
– Ad alerts
• New
– "Enhanced name and shame" on special part of ASA website
– Removal of ads that link to pages hosting non-compliant content, "with the
agreement of search engines."
– ASA paid-for search ads highlighting advertiser's continued non-compliance
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6. osborneclarke.com
Official guidance available
1. CAP 14 page guide "Extending the Digital Remit of the
CAP Code."
2. CAP Q&A 2 September 2010 "ASA digital extension: We
have the answers."
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7. osborneclarke.com
Three key questions
• Is it under the advertiser's control?
2. Is it primarily designed to sell something?
"Directly connected with the supply or transfer" of products ("DCST") echoes
"invitation to purchase" in CPRs (price and product characteristics enabling a
purchase) but it may still be caught even if it omits price or transactional
facility.
For example
(a) has it appeared in the same or a similar form as an ad in paid-for third
party space or
(b) does it make an "invitation to purchase" easily available?
Possible General Media Panel role.
3. Is it excluded?
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8. osborneclarke.com
CAP Code-outside online remit from 1 March
2011
• Website content not covered by I d. or I h. including (but not limited
to):
– editorial content
– news or public relations material
– corporate reports
– natural listings on search engine or price comparison site
– sponsorship (marcoms that refer to sp'p are within CAP Code)
– customer charters and codes of practice
– investor relations (info about an org'n addressed to the financial
community including shareholders and investors)
– heritage advertising
– marcoms promoting causes or ideas
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9. osborneclarke.com
And finally….
• User generated content likely to be in remit if answer is "Yes" to
either of these
(a) did the advertiser originally solicit the submission of UGC, then adopt and
incorporate it within its own marcoms?
(b) did an individual provide advertiser on an unsolicited basis with material which
advertiser subsequently adopted and incorporated within its own marcoms?
2. Advergames in remit if they are DCST marcoms either in
(a) paid-for space or on advertiser's own websites or
(b) non paid-for space online under the advertiser's control
3. Only co.uk sites? No. New remit covers marcoms of organisations operating
from UK on own sites or other non paid-for space online under their control, so could
extend to e.g. Facebook or other .com sites.
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10. osborneclarke.com
Contact
New ASA digital remit
Stephen Groom
March 2011
stephen.groom@osborneclarke.com
www.marketinglaw.co.uk
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11. New ASA Digital Remit
stephen.groom@osborneclarke.com
2 March 2011