March 14, 2016

1 March 2016 marked the 5th Anniversary of the CAP Code’s online remit extension, which brought marketing communications on advertisers’ own websites (and in other non-paid-for space online under their control) within the scope of the Code.

CAP says that complaint levels were initially much higher than expected showing clear public demand for the extension, with most related to misleading claims.  This continues to be the focus of the majority of complaints and the ASA and CAP have dealt with a number of sector-wide issues online including ticket pricing, letting agents’ fees, complementary therapies and copycat websites.  The number of complaints about this material dropped slightly after the initial surge, but they still make up a fairly significant proportion of the ASA’s incoming work, CAP says.

Despite the extension, not everything online is covered by the CAP Code; aside from jurisdiction and the relevant exclusions in Part II of the Code, clause I. h. was carefully worded, and intentionally so, CAP says.  CAP acknowledges that deciding whether material on a website, or in other non-paid-for space online under an organisation’s control, is covered by the Code can be tricky.  Accordingly, in its analysis, it has set out some important aspects of the remit that are useful to bear in mind:

• it applies to ads or other marketing communications “directly connected with the supply or transfer of goods, services, opportunities and gifts”. This does not mean that it needs to include a price or seek an immediate financial transaction, but it is useful to consider whether a consumer is likely to have their transactional decisions affected by the material, CAP says.  If so, it is likely that the content would be considered “directly connected” and therefore within the ASA’s remit (depending on the context);
• it extends to “non-paid-for space online under the advertiser’s control”. This covers, for example, material on advertiser-controlled pages on social networking websites, such as Facebook, Twitter, Linkedin and Instagram;
• incorporating user-generated content makes the advertiser responsible for it. If an organisation takes such content and puts it on its own website or social media pages, or actively promotes it (e.g. by “Liking”, “Retweeting” or sharing the content), it is likely to fall within the remit of the Code, and the organisation will be considered responsible for it; and
• the promotion of causes or ideas is excluded (unless there is a direct solicitation of donations). This usually applies to charity/pressure-group websites.  Only a direct solicitation of donations, rather than merely urging consumers to sign a petition, would bring such content within the scope of the Code.

To read CAP’s statement in full, click here.