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Advertising on websites soon to be regulated by the ASA

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The Advertising Standards Authority (ASA) is an independent regulator of advertising in the UK. The work of ASA in the non-broadcast arena is governed by The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code), the purpose of which is to ensure that all adverts are fair, true and inoffensive.

The current online remit of the CAP Code includes advertising in emails and in paid-for space, such as pop-up advertisements. Further, it covers sales promotions in paid-for and non-paid for space online. It does not, however, currently apply to businesses’ own websites or to non-paid for advertising online. This is about to change. From 1 March 2011, the ASA’s online remit will be extended, so as to apply to:

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.

The new Code will therefore cover online marketing on organisations’ own websites and even on social networking sites such as Twitter and Facebook, where the intent is to sell a product or service.  Businesses should be aware that an advertisement does not necessarily have to include a price or refer to a transactional facility in order to have the intent to sell something.

The new rules have been created to reflect the change in the way businesses conduct their marketing and advertising, especially in relation to social networking sites which are now widely used. The ultimate aim of the ASA is to protect members of the public, especially the vulnerable, such as children, from being misled into buying products or services.

The rules will encourage businesses to be clearer in their advertising messages. Whereas the current position has made it possible for some online marketing messages to avoid the scrutiny of the ASA, the new rules will ensure that businesses will be held accountable for making almost any misleading marketing statements online. 

The ASA has the power to tell the marketer to amend or withdraw an advertisement that breaches the Code. With the new rules come new sanctions, such as publishing findings of non-compliance and details of misleading statements on the ASA website, having non-compliant paid-for adverts removed in conjunction with search engines, and even the ASA itself placing paid-for advertisements on internet search engines that highlight the continued non-compliance of a marketer’s advert. Such sanctions will be applied until the marketer chooses to comply with the Code. In extreme cases the ASA will still be able to refer to the Office of Fair Trading (OFT), bringing with it the threat of an injunction.

It is important for businesses to ensure that they familiarise themselves and comply with the new rules before 1 March 2011. To run alongside the changes a new Website Audit service, provided by CAP Services, will be available from 1 February 2011. This service is available to those organisations which wish to check that their online marketing communications comply with the new rules.

If you would like further advice in relation to this please feel free to contact Jemma Green. Useful guidance can also be found on the ASA’s website at www.asa.org.uk.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.