Industry sceptical as ASA's online rules kick in

Misleadlng or false marketing messages placed on company websites and via social media will come under increased scrutiny from today (Tuesday, 1 March) as the ASA's regulation of the space begins.

Dr Pepper and its associated sites: recently came under fire for a Twitter campaign
Dr Pepper and its associated sites: recently came under fire for a Twitter campaign

The Advertising Standards Authority will now exercise new powers to police company websites and digital promotional and marketing activity.

The ASA admits it "is impossible to say" exactly how much work it will have to deal with as a result of the changes, but has recruited an extra 10% of complaints and investigations staff.

The extended responsibilities covers company websites, branded content and paid-for comment on social networks and blog postings.

In its literature, the industry body has already pointed out that the extension of its remit will not equate to the creation of new rules, and that it hasn’t seen "widespread evidence" of needing to intervene.

To date it has received 4,500 complaints that "companies behave differently on their own sites" than they do in other marketing space, but has not been able to act.

Marina Palomba, head of the Reed Smith UK Advertising Compliance practice, said the ASA is opening itself up to "reputation damage", as any new regulation will be difficult to enforce.

"It will be difficult to impose sanctions. Huge numbers of advertisers will be completely oblivious and unaware of this situation.

"Traditional advertisers won't be, but as we all know, the internet is a different environment to television and press. The internet is not used to any sort of regulation in this area and it will come as quite a shock," she said. 

The advertising regulator is introducing the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing, sitting within the CAP Code, which currently covers all external online advertising by companies, but not the claims made through their own websites and social media offerings.

Tom Dunn, digital strategy director at Maxus, agreed that clients have been taking an increased interest in the ASA's new powers, but believes common sense will prevail when expanded regulations come into force.

"There's no doubt that clients are asking the question, and some are worried about the social media aspect of the regulations, but I think that if clients, their agencies and the ASA keep the lines of communication open, common sense will prevail. It's still at the stage of suck it and see."

Paul Vassallo, head of digital trading at Media Contacts said the regulations are a hot topic within the advertiser and agency sectors, and that certain clients are asking for clear guidance on the ASA's extended remit.

"It's definitely going to make a difference because, in the past, it was only the digital activity clients paid-for that they had to worry about. Now they have to be really careful about their websites as well and especially if that sort of activity opens out into the social space, it is going to make it quite difficult.

"Because it's such as new regulation, everyone is in a kind of holding pattern while they figure out what it means."

Nick Stringer, director of regulatory affairs at the Internet Advertising Bureau (IAB), understands that the rise of social media may become a concern: "[The extension of the ASA digital remit] is good for consumers and it is good for business, preserving the integrity of digital marketing as it continues to evolve and grow.

"Whilst the ASA currently gets few consumer complaints about social media, this is clearly going to be the biggest challenge to the self-regulatory system."

The ASA will use three main sanctions to control offenders who flout the new code:

  • An enhanced name and shame policy – providing details of an advertiser and the non-compliant marketing communication on an enhanced section of the ASA website.
  • Removal of paid-for search advertising – ads that link to the page hosting the non-complaint marketing communications may be removed with the agreement of the search engines.
  • ASA paid-for search advertisements – the ASA could place advertisements online highlighting an advertiser's continued non-compliance.

Dissenting voices have suggested the regulator will remain toothless unless it introduces a series of fines for non-compliance.

Instead, the ASA looks like it will be operating its famously soft-touch approach, often publishing adjudications that, at most, instruct the party involved not to do it again, like a supply teacher barely managing to keep control of the class.

Two year "seed funding" from Google has been announced for the project, but it is far from clear if a supposed levy on media agencies to fund the rest of the project has met resistance or not.

If it does, there could be a large hole in financing the project if suddenly thousands of complaints are received about companies that could be perceived as flouting the regulations.

Palomba said: "The ASA simply doesn't have the funding for this sort of project. It has been given some seed funding from Google, but the rest is not that clear."

Along with policing company websites in this country, the ASA said that if it receives a complaint from a UK consumer about a foreign site, it will liaise with its counterpart in the country where the website has its base. This has also lead to accusations of overstretching its resources, and its powers.

When pressed on the matter, the ASA has been forced to admit that it will have no recourse to monetary punishments. It will not be able to fine the offending sites, but will have to refer them under Consumer Protection Regulations (CPR) to the Office of Fair Trading, which then may take action, but there are no guarantees.

Like every set of new regulations, advertisers and agencies will have to wait for the first companies to be rapped on the knuckles. Whether it will sting, or be laughed off by the perpetrator remains to be seen.

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