July 5, 2012

Retailers must not overlook the regulations that govern online content

For some time now, there has been pressure on retailers not only to establish an online presence but also to develop a social media experience for consumers in order to demonstrate and forge their position in the market place. For example, the number of Facebook “likes” a product receives has become a significant feature, with the number of “likes” being recorded and manipulated by businesses both to monitor themselves and to develop future promotion campaigns. Dealing with user generated content (UGC), which can include publicity that continuously oscillates between good and bad, and keeping up with the varying tempo at which social media trends move, inevitably forces retailers to focus on the reputation of the brand and the image of its products. It is important, however, for businesses not to overlook their duty to comply with the regulations that govern the content in their online space.The ASA’s extended remit governs content on retailers’ websites and social media pages.

The Advertising Standards Authority (ASA) is the UK body responsible for regulating the content of advertising. It regulates adverts both within and outside broadcasts and it applies a code (the CAP Code) to do that. Since 1 March 2011, the ASA’s remit under the CAP Code has been extended to regulate ads and other marketing communications of companies, organisations and sole traders on their own websites and in other non-paid-for space online (including social media) under their control (previously, the ASA’s remit applied only to emails and ads in paid-for space).1

Retailers particularly are captured by the remit extension because it expressly covers ads which are “directly connected with the supply or transfer of goods services, opportunities and gifts…”. Businesses should therefore be actively assessing any online ads within their control against the standards set out in the CAP Code.

ASA’s assessment criteria – watchwords are content and context

The ASA will assess any complaints on a case by case basis. Compliance with the CAP Code is assessed according to the probable impact of the marketing communication when taken as a whole and in context. So, the key watchwords in the ASA’s assessment of advertising and marketing communication are content and context.

UGC can be regarded as advertising

Businesses must be careful not to be drawn in by the pull of positive UGC on websites and webpages, which they control, and use it to their advantage. That is because UGC can be regarded as advertising and therefore within the remit of the CAP Code. One example, provided by the ASA, of when UGC use is likely to be considered an ad (and therefor regulated) is when a consumer’s positive feedback is placed in a prominent position on a webpage rather on a message board which is only moderated for content that is harmful and offensive.

The ASA also has extended sanctions available to it, designed to serve as an incentive to ensure compliance with the CAP Code. The additional sanctions to those already available to the ASA include:

• An enhanced name and shame policy: The ASA may provide details of an advertiser and its non-compliant ad on the designated webpage “Non-compliant online advertisers” on the ASA website and the ASA may also draw particular public attention to any non-compliant ads.
• ASA paid-for search advertisements: The ASA can place advertisements online on internet search engines which highlight an advertiser’s continued non-compliance and which may also link to its “Non-compliant online advertisers” webpage.
• Removal of paid-for search advertising: With the cooperation of the search engine, the ASA can remove paidfor ads that link directly to the webpage which hosts the non-compliant ad on the advertiser’s website or in other non-paid-for space online under the advertiser’s control.

What you can do

As the ASA is conscious that some businesses, particularly smaller ones, are not aware that they should be complying with the CAP Code, it is urging website owners and agencies to sign up for its CAP Services, which provides guidance and training on compliance. Part of the CAP Service is a Website Audit Service whereby businesses can have their website audited by the Copy Advice Team.

Whether a business chooses actively to seek external advice or not, if a business has an online presence, there’s no escaping the responsibility to comply with the CAP Code.

For further information contact Wiggin’s online retail group:

Shaun Lowde
t: +44 (0) 20 7927 9683
e: shaun.lowde@wiggin.co.uk

Michael Brader
t: +44 (0) 20 7927 9679
e:michael.brader@wiggin.co.uk

Sarah MacDonald
t: +44 (0) 1242 631 268
e:sarah.macdonald@wiggin.co.uk

Antonia Anness
t: +44 (0) 1242 631 349
e:antonia.anness@wiggin.co.uk

 

1 The extension to the ASA’s remit is detailed in the publication “Extending the Digital Remit of the CAP Code” (http://www.asa.org.uk/MediaCentre/2010/~/media/Files/CAP/Codes/CAP%20Digital%20Remit%20Extension.ashx). 

2 “Public responds to online remit extension” (3 October 2011) (http://www.asa.org.uk/Media-Centre/2011/Public-responds-to-online-remit-extension.aspx).Breach of the CAP Code is a PR nightmare for retailers