The Advertising Standards Authority has extended its remit to include company websites and social media. Legal expert David Bond explains what this means for those who advertise or promote via online content
I run a hotel chain and often use our corporate website and Facebook page to showcase our facilities and rates. I am aware that the Advertising Standards Authority's (ASA) remit has expanded to cover company websites and social media. What do I need to do to comply?
The ASA's online remit was limited to sales promotions and paid-for advertising, including pop-ups, banner ads, sponsored searches and viral ads.
However, its remit has been extended and since 1 March includes all marketing communications in non-paid-for digital space. This includes marketing communications on companies' own websites and their branded pages in third party online space, such as Facebook and Twitter.
The extension means that companies must now apply the rules set out in the ASA's non-broadcast code, the CAP Code (see www.asa.org.uk), to all online marketing communications, in the same way they would apply such rules to their non-broadcast advertising, such as print and paid-for online advertising.
Prior to the extension, the regulatory gap caused by the ASA's limited remit meant that many advertisers used their corporate websites to make claims that would not be acceptable in print and broadcast media, like promoting "availability guaranteed", "cheapest rate" or by making headline price claims without including taxes and non-optional extras. Going forward, hotels will need to be vigilant about superlative descriptions of services and facilities, such as "best" and "leading".
So what type of online content is covered by the new remit? It only relates to promotional content - ie, the central purpose must be to sell a product or service. So it will cover marketing communications about a company's products and services, direct marketing and sales promotions. The ASA will not have the power to regulate journalistic and editorial content.
The ASA has also indicated that user-generated content published on a company's website or its branded pages in social media space will fall outside the its remit, unless it is "adopted" by the company and used in the company's own marketing communications. For example, if a hotel chain takes a user's comment from an online blog about the user's stay at one of its hotels and incorporates the statement into a Facebook page or the company's own website then the contents of that comment will fall within the ASA's remit.
â- Keep a record of online space under your control, including corporate websites and branded pages on social media space
â- Thoroughly audit all existing content in your online space to assess whether it falls within the ASA's new remit
â- Apply the CAP Code rules to all promotional content (including all editorial content that contains marketing communications)
â- Remove or amend all non-compliant content
â- Hold substantiation documents for all claims you make in your online space
â- Vet all new content in accordance with the steps set out above
â- Put people and processes in place to deal with future ASA investigations as and when they arise
For some time now, the ASA has been receiving a large number of complaints relating to online advertising, which it had not been able to investigate as they fell outside its remit. That has now changed and we can expect a high number of complaints in the coming months. The ASA will undoubtedly be keen to make examples of advertisers who breach the CAP Code, to set benchmarks for others. Sanctions for non-compliance will include:
â- Application of the ASA's existing sanctions - primarily naming and shaming offenders and requesting the withdrawal of infringing advertisements. The ASA has already created a page on its website dedicated to listing ‘non-complying digital advertisers'.
â- Possible new sanctions - these include requesting search engines to remove paid-for ads that link to any page hosting a non-compliant marketing communication and the ASA proposes publishing its own paid-for search advertisement to highlight an advertiser's continued non-compliance with the CAP Code. This will appear every time a customer searches under the relevant brand.
David Bond, partner, Field Fisher Waterhousedavid.firstname.lastname@example.org