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December 15, 2014
It is intended for reference purposes only and does not constitute definitive advice. Links to the original source materials are included where there are no restrictions in terms of access. References may also be made to sources that require separate registration or subscription. A link to a source does not necessarily imply endorsement of the source or the material provided through the link. For further information on any of the matters discussed in this summary please contact Alexander Ross. If you have any comments, queries or suggestions please contact us at comments. All suggestions and comments are most welcome.
Ofcom publishes report on the coverage, capacity and reliability of UK’s digital infrastructure.
Ofcom publishes annual International Communications Market Report 2014.
European Patent Office signs Patent Prosecution Highway (PPH) pilot programme with Israel Patent Office.
Ofcom publishes statement outlining modification of restrictions on adoption and use of 03 numbers.
Ofcom fines two companies total of £40,000 for making abandoned or silent calls.
Ofcom publishes statement authorising high duty cycle Network Relay Points (NRPs) in 870-873 MHz spectrum band.
PhonepayPlus publishes changes to regulatory framework for consumer credit services.
PhonepayPlus orders £330,000 fines to UK companies over mobile malware and WAP opt-in.
Government consults on communications data codes of practice: acquisition, disclosure and retention.
Article 29 Data Protection Working Party assesses various cybercrime scenarios relating to cross-border access to personal data.
Government’s Nuisance Calls Taskforce formally sets out recommendations to help tackle problem of unwanted calls and texts.
Ofcom and ICO publish update on their Joint Action Plan on tackling nuisance calls and messages.
Ofcom publishes research with BBC into accuracy of predictions of indoor Digital Audio Broadcasting radio coverage.
Supreme Court grants performing artist permission to appeal Court of Appeal’s decision banning worldwide publication of his semi-autobiographical work on grounds it would cause psychiatric harm to his son.
Court of Appeal refuses leave to appeal High Court’s decision not to grant interim injunction restraining broadcast of BBC Panorama programme about journalist, Mr Mazher Mahmood.
Government publishes The Films (Definition of “British Film”) Order 2015 revising cultural test for film tax relief.
Ofcom fines operator of on-demand programme service £1,500 for failure to restrict under 18s viewing sexually explicit material.
Government publishes call for evidence on lotteries.
Committee of Advertising Practice publishes advice on targeting of ads for gambling products.
Committee of Advertising Practice publishes online remit update.
General
Ofcom publishes report on the coverage, capacity and reliability of UK’s digital infrastructure.
Ofcom’s “Infrastructure Report 2014” is designed to provide accurate and up to date information on the state of the UK’s digital infrastructure in order to ensure the appropriate targeting of Government intervention and public funding aimed at improving the coverage of mobile networks and superfast broadband. The report provides data on the nature and coverage of the UK’s fixed broadband, mobile and Wi-Fi networks, digital television, digital radio and internet infrastructure. It considers how networks are adapting to increases in demand and highlights challenges for the future. Alongside the report, Ofcom has published an interactive coverage map, which provides a “single-stop” for consumers and businesses to assess the quality of the communications infrastructure in their areas.
Ofcom has also published several commissioned supporting documents, which examine detailed aspects of the UK communications infrastructure. These include a report by Reid Technical Facilities Management on the use of IPv4 and IPv6 internet address spaces by organisations in the UK. Every device connected to the internet must have access to an internet protocol (IP) address. The current version is IPv4 and provides around four billion unique addresses. At the time IPv4 was introduced, it was thought the address space would be far larger than could ever be utilised. However, ISPs estimate that they will run out of IPv4 addresses in the next two to five years. The report considers the options for continuing to meet the demand for IP addresses. To access the Infrastructure Report 2014 and supporting documents, click here.
Ofcom publishes annual International Communications Market Report 2014.
The annual report examines the take-up, availability, price and usage of communications services across the world’s major countries, including the UK. The report covers the telecoms, broadcasting and postal sectors.
The report found that the UK’s internet economy is one of the strongest in the world, driven by record online advertising, spending and entertainment consumption. The UK has the highest e-commerce spending among the major nations surveyed in the research: the average annual online spend for UK consumers is almost £2,000 on per head. This was significantly higher than the next-highest valued market of Australia, which was £1,356 per head.
The report also found that two-fifths (40%) of advertising spending in the UK is online, more than any of the other countries analysed.
Alongside the report, Ofcom also published its latest European Broadband Scorecard, which compares levels of internet coverage, take-up, usage and choice between European Union states. It found that the UK leads the EU’s five biggest economies (France, Germany, Italy, Spain and the UK) for broadband take-up, usage and superfast broadband coverage. Nearly eight in ten UK homes are now able to access superfast broadband, which provides connection speeds of 30 Mbit/s or above. To read Ofcom’s media release in full and to access the reports, click here.
Technology
European Patent Office signs Patent Prosecution Highway (PPH) pilot programme with Israel Patent Office.
The PPH programme will leverage fast-track patent examination procedures in order to enable innovators from Europe and Israel to obtain patents more quickly and efficiently. The EPO recently signed similar agreements with the patent offices of Canada, Mexico and Singapore. All four pilot programmes will begin on 6 January 2015.
Under the programmes, patent applicants whose claims have been found to be patentable by either the EPO or one of the other offices may ask for accelerated processing of their corresponding applications that are pending before the other office. The offices also agreed to refer to and share already existing work results as much as possible in such cases. This is expected to speed up the process and reduce costs for applicants.
The PPH with Israel follows on the heels of a comprehensive PPH pilot programme launched in January 2014 by the world’s five largest IP offices (the EPO plus the patent offices of China, Japan, Korea and the US), which utilise both international (PCT) and national work products.
The EPO says that Israel is an important country for technology and innovation. The EPO received 1,783 patent filings from inventors and companies from Israel in 2013, an increase of 7% over the previous year. The country’s strength in technology is also reflected in the figure for European patent applications per million inhabitants. With 136 applications per million inhabitants in 2013, Israel was 11th on the list. To read the EPO’s press release in full, click here.
Ofcom publishes statement outlining modification of restrictions on adoption and use of 03 numbers.
The rules governing the use of 03 telephone numbers are set out in Ofcom’s Numbering Plan.
Ofcom explains that 03 telephone numbers are UK-wide, non-geographic numbers typically used to provide voice services such as customer service helplines and public services. Under Ofcom’s rules, the retail price charged for calls to 03 numbers must not exceed that of calls to standard geographic numbers, i.e. those that begin 01 or 02. Calls to 03 numbers must be included in any call allowances or discounts offered to customers in the same way as geographic calls.
Ofcom’s modification to the restrictions applicable when adopting an 03 number provides clarity to communications providers that revenue sharing with callers to 03 numbers is not permitted. The amendment makes clear that the restriction forbids any practice where payments received from calls are used to fund additional services provided to the calling party or other end user. This is to ensure that consumers calling 03 numbers can be confident that they are paying only for the call.
The amendment took effect from 11 December 2014. To read Ofcom’s statement in full, click here.
Ofcom fines two companies total of £40,000 for making abandoned or silent calls.
Separate investigations into Green Deal Savings Limited and MYIML Limited found both to be in breach of legislation relating to “persistent misuse” of a telephone network or service.
An abandoned call is when an automated dialling system dials a consumer number but there is no operator at the caller end to start the conversation – the call therefore terminates.
A silent call is when a call is made but the calling technology detects some noise at the receiving end which persuades it that an automated answer is being made, so no further communication is made but the call is not terminated.
Ofcom estimated that MYIML, a lead generation company, made an estimated 30,296 abandoned calls between 16 December 2013 and 3 February 2014. It also failed to include a suitable phone number in the recorded message played to the consumer that would allow them to return the call and decline future marketing calls.
The fine for Green Deal Savings Limited, a company offering home energy efficiency services, related to the making of silent calls. By failing to ensure an information message was played in the event of an abandoned call, it made an estimated 12,703 silent calls between 27 October and 14 December 2013. It also made approximately 420 abandoned calls in one 24-hour period on 27 October 2013.
Taking into account a number of factors, including the size of the businesses and level of consumer harm caused by the breaches, the companies each received fines of £20,000.
These latest penalty decisions come as Ofcom and the Information Commissioner’s Office outline further progress made in their joint action plan to tackle nuisance calls and texts. To read Ofcom’s media release, click here.
Ofcom publishes statement authorising high duty cycle Network Relay Points (NRPs) in 870-873 MHz spectrum band.
Ofcom explains that NRPs are used in some networks to connect individual consumer devices together and to connect them to networks. Introducing licensing for NRPs will assist the early development of the emerging Internet of Things (IoT) and machine-to-machine (M2M) uses.
To assist and promote growth and innovation in the IoT and M2M as early as possible, Ofcom is making licences available, which will permit the holders to install and use these devices in the 870-873 MHz band. Non-exclusive licences will be available from 12 January 2015. To read Ofcom’s statement in full, click here.
PhonepayPlus publishes changes to regulatory framework for consumer credit services.
PhonepayPlus has published its final statement following a review of regulations, including prior permission conditions, for consumer credit services operating on premium rate telephone lines. The statement introduces new service-specific guidance in this area to ensure consumers get clear information up front before using credit broking services on 09 numbers and other PRS lines.
The Financial Conduct Authority, which has responsibility for consumer credit services following the closure of the Office of Fair Trading, is introducing new rules for credit brokers on fees and transparency. These rules, which come into force on 2 January 2015, are being introduced to address credit broking activities that are seen as putting consumers at risk. The new rules include:
- making sure customers receive clear information about who they are dealing with;
- what fees will be payable and when; and
- clearly advertising that the organisation a consumer is dealing with is a broker.
PhonepayPlus’s final statement and appended guidance outline key points for consumer credit services operating by PRS, including:
- the scaling back of the prior permission requirement for consumer credit services during the remaining period of time in which the 12th code is in force; and
- the requirements on providers of PRS consumer credit services to be compliant with the Code of Practice.
PhonepayPlus says that it is “aware that there are some complexities surrounding the shift away from prior permission conditions and towards the use of Code enforcement”. The issuing of guidance is part of the regulator’s “support to industry” as the transition takes place. For a link to PhonepayPlus’s statement, click here.
PhonepayPlus orders £330,000 fines to UK companies over mobile malware and WAP opt-in.
Premium rate services regulator PhonepayPlus has issued fines of £330,000 to three companies after uncovering mobile malware that concealed charges to Android phone owners.
The malware was contained in a number of apps, with names such as “Fun Sexy Girls” and “Glam Pleasures”, which downloaded automatically without users’ consent whilst they visited an adult website. Once installed consumers could inadvertently initiate a subscription by clicking anywhere on the screen. The app suppressed premium rate text messages, such that the phone’s owner would not know that they were being charged.
In addition to the app, two of the three PRS providers, Cloudspace and Circle Marketing, used marketing lists to contact consumers without their consent.
All three companies were unable to show that they had obtained consumers’ consent to be charged.
In relation to the WAP opt-in, a number of consumers reported receiving explicit text messages and told PhonepayPlus that they were shocked, describing themselves as “extremely upset” by “these vile messages”.
Data Protection
Government consults on communications data codes of practice: acquisition, disclosure and retention.
The first code of practice on which the Home Office is consulting is the updated acquisition and disclosure of communications data code of practice drawn up pursuant to s 71 of the Regulation of Investigatory Powers Act 2000 (RIPA).
The second code of practice is the new retention of communications data code of practice made pursuant to regulation 10 of the Data Retention Regulations 2014 and s 71 of RIPA.
The draft codes set out the processes and safeguards governing the retention of communications data by communications service providers and the acquisition of data by public authorities, including law enforcement agencies. The Government says that they are intended to provide clarity and incorporate best practice on the use of the relevant powers, “ensuring the highest standards of professionalism and compliance in this important aspect of law enforcement”.
The consultation seeks views on the additional consideration that must be given to communications data requests relating to those in professions that handle confidential information (such as journalists). The consultation also contains a document setting out how the retention code of practice would take into account provisions contained in the Counter-Terrorism and Security Bill. The last day for response to the consultation is 20 January 2015. To access the consultation documentation, click here.
Article 29 Data Protection Working Party assesses various cybercrime scenarios relating to cross-border access to personal data.
The working party has written to the Council of Europe identifying three main cybercrime scenarios relating to cross-border access to personal data, and assessing the data protection implications of each of them.
The three main situations, each with different data protection implications, identified by the Working Party are:
i) The general principle: the transfer of personal data between law enforcement authorities applying national criminal law procedures and bilateral or multilateral treaties on cooperation in criminal matters;
ii) The exception to the general principle: the direct transfer of data from a private entity/or natural person to the law enforcement authority of a third country in urgent, exceptional circumstances and where provided for by the law of the searched country or applicable cooperation agreement; and
iii) Where the data controller cannot be located: where it cannot be deduced which data protection regime would be applicable.
In relation to the first scenario, the Working Party says that it is available to help advise European governments to improve data protection clauses in mutual legal assistance agreements to ensure that minimum data protection safeguards are complied with when exchanging personal data between law enforcement authorities.
As for the second scenario, the Working Party reminds the Council that a transfer is prohibited unless the searching State has an adequate level of protection of personal data. If the level of protection is not adequate, Article 26(e) of the Data Protection Directive (95/46/EC) allows for the transfer of personal data in cases where it is necessary for the protection of vital interests of the data subject, provided that the data protection principles set out in Article 6 are respected.
In terms of the third scenario, the Working Party reminds the Council that data protection principles cannot be ignored simply on the premise that the identity or jurisdiction of the data controller is unclear or unknown. The most appropriate solution is for the searching party to respect the conditions of the party that has the highest data protection standards to ensure that the data protection law of the searched party is not violated. To read the Working Party’s letter in full, click here.
Government’s Nuisance Calls Taskforce formally sets out recommendations to help tackle problem of unwanted calls and texts.
The taskforce, chaired by Which? executive director Richard Lloyd, is part of the Department for Culture, Media and Sport’s Action Plan on nuisance calls, which was published in March 2014.
The Taskforce’s recommendations are, it says, designed to help reduce the incidence of unwanted calls and texts received by consumers by improving the ways in which marketing organisations, regulators and the Government treat consumer consent to receive direct marketing by telephone and text.
The Taskforce wants more organisations to raise their standards of practice in these areas. This will require businesses, and the individuals who lead them, to demonstrate a commitment to putting consumers back in control of their personal data and protecting them from nuisance calls and texts. It also requires regulators to work together, to enforce the rules and to provide more practical guidance, and for the Government to provide leadership.
The Taskforce’s recommendations include advice to businesses on improving their direct marketing practices. For example, it recommends that businesses should treat compliance with the law on consumer consent to direct marketing as a board-level issue in the context of corporate risk and consumer trust. They should also consider actively joining and promoting accreditation schemes aimed at preventing nuisance calls and texts.
As for industry bodies, the Taskforce recommends that their codes of conduct should require members to follow good practice guidance on obtaining, recording and sharing consent for marketing, with reference to ICO guidance where appropriate. Member organisations that breach these requirements should be held to account.
The Taskforce’s recommendations also include advice for regulators, such as the Competition and Markets Authority, the ICO and Ofcom. It recommends that the ICO should build on its existing direct marketing guidance to offer further good practice solutions to the causes of nuisance calls, and that Ofcom should assess the current level of consumer awareness and understanding of the TPS, for both fixed and mobile phone users, and consider whether more should be done to increase such consumer awareness. The Taskforce also encourages the regulators to work together.
Finally, the recommendations include action plans for the Government, including a recommendation that the Department of Culture, Media and Sport, and the Ministry of Justice should review the ability of the ICO to hold to account board-level executives who fail to comply with rules and guidance on the use of consumers’ personal data for marketing purposes, and amend legislation to give the ICO further powers as necessary. For a link to the Taskforce’s formal recommendations and for the ICO’s response, click here.
Ofcom and ICO publish update on their Joint Action Plan on tackling nuisance calls and messages.
In July 2013, Ofcom and the ICO published their joint action plan for tackling nuisance calls and messages. In March 2014, following publication of the Department for Culture, Media and Sport’s Action Plan on nuisance calls (see item above), the regulators published an update on their Action Plan, which set out the priority areas for action, enshrining both organisations’ commitment to continue working together to tackle the issue and reduce consumer harm.
This latest update states that the issue is “complex” and that “there is more to do”. However, the regulators say, “we have been making good progress in the priority areas set out in our action plan…”
The priority areas are:
- ongoing, targeted enforcement action;
- improving the tracing of nuisance calls and assessing technical measures to help address nuisance calls;
- working together and with the Government, other regulators, Trading Standards, industry and consumer groups to ensure effective coordinated action; and
- improving consumer information on how to reduce and report complaints about nuisance calls and messages.
For a link to the regulators’ update, click here.
Broadcasting
Ofcom publishes research with BBC into accuracy of predictions of indoor Digital Audio Broadcasting radio coverage.
Ofcom says that the research was intended to validate, and if necessary help refine, the computer model used for measuring DAB. It involved taking measurements of DAB reception in households across different coverage areas in 2013.
Testing took place in different locations in a large number of homes and the results were compared with predictions made by the computer model.
Overall, the findings of the study confirm that, on average, the prediction model gives a good indication of the level of DAB coverage. DAB reception in coverage areas deemed “good” was found to be equivalent to good FM reception. To read the research report in full, click here.
Publishing
Supreme Court grants performing artist permission to appeal Court of Appeal’s decision banning worldwide publication of his semi-autobiographical work on grounds it would cause psychiatric harm to his son.
The Supreme Court has also ordered an expedited hearing of the case. It is therefore listed for the week commencing 19 January 2015.
As previously reported in N2K, the Court of Appeal’s decision in MLA v OPO [2014] EWCA Civ 1277, in which it held that publication of MLA’s work would constitute intentional conduct on the part of MLA to cause psychiatric harm to OPO in accordance with the 19th Century principle in Wilkinson v Downton [1897] (QB) 57 (which makes it a wrong in certain circumstances intentionally to inflict mental suffering), was widely criticised by freedom of expression campaigners who expressed concern at the use of an obscure tort to prevent publication of a work that was in the public interest. Members of English PEN said that they were “gravely concerned about the impact of this judgment on the freedom to read and write in the UK”.
MLA applied to the Supreme Court for permission to appeal stating that the Court of Appeal should have held that: i) the requirement of “false words or threats” was an essential element of the tort under Wilkinson v Downton; ii) the tort should be confined to targeted conduct; and iii) the tort should require actual intention to harm, not imputed intention. In the alternative, the application claimed that: i) the Court of Appeal failed properly to analyse the concept of “lack of justification” and to take into account MLA’s, the publisher’s and the public’s Article 10 rights; and ii) the Court of Appeal took the wrong approach to an injunction severely restricting freedom of expression. The Supreme Court has now granted permission to appeal. To read the Court of Appeal’s decision, click here.
Court of Appeal refuses leave to appeal High Court’s decision not to grant interim injunction restraining broadcast of BBC Panorama programme about journalist, Mr Mazher Mahmood.
Mr Mazher Mahmood’s application for permission to appeal the High Court’s decision not to grant the requested injunction against the BBC was heard as a matter of urgency by the Court of Appeal on Monday 11 November, the same day as the intended broadcast of the Panorama programme. The written judgment has only recently become available.
Mr Mahmood, the well-known undercover investigative journalist and reporter for The Sun on Sunday newspaper, specialised in sting operations. One such operation concerned the singer Tulisa Contostavlos. A front-page article in The Sun on Sunday accused her of helping Mr Mahmood to obtain £800 worth of cocaine and resulted in Ms Contostavlos being prosecuted. Her trial began in July 2014. However, the judge considered that Mr Mahmood had probably lied whilst giving evidence and, since he was a major witness for the Crown, the trial collapsed.
The collapse of the trial led to three events: i) the suspension of Mr Mahmood by his employers, News UK; ii) a police investigation into whether charges should be brought against him; and iii) the preparation of a Panorama programme by the BBC alleging that Mr Mahmood was, “The real crook using sophisticated entrapment and even creating crimes and fabricating evidence”.
Mr Mahmood’s original request for an interim injunction was heard by Sir David Eady. Mr Mahmood argued that the purpose of the injunctive relief was to protect details of his current physical appearance in accordance with his Article 8 rights, and to protect him from the risk of violence, which Mr Mahmood argued engaged his rights under both Articles 2 and 3 of the European Convention of Human Rights as well as under Article 8.
Sir David had concluded: i) that there was insufficient evidence of an increased risk of violence or of a threat to Mr Mahmood’s wellbeing and safety arising out of the proposed broadcast such as to engage Articles 2 and/or 3; and in consequence ii) that Mr Mahmood’s right to an injunction was precluded by s 12(3) of the Human Rights Act 1998. Section 12(3) imposes a threshold test, which has to be satisfied before a court may grant interlocutory injunctive relief:
“No such relief is to be granted as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”.
The Court of Appeal noted that Sir David’s task had been an evaluative one and that the Court of Appeal would not interfere with it unless he had committed an error of principle or had reached a conclusion that was outside the ambit of conclusions that a judge could reasonably reach. On the evidence, which included the fact that Mr Mahmood had himself published photographs of himself and had raised his arguments under Articles 2 and 3 “very late in the day”, their Lordships did not consider that Mr Mahmood had demonstrated that the judge had fallen into error in either of those two ways and they therefore refused leave to appeal. (Mahmood v British Broadcasting Corporation [2014] EWCA Civ 1567 (11 November 2014) – to read the judgment in full, click here).
Film & TV
Government publishes The Films (Definition of “British Film”) Order 2015 revising cultural test for film tax relief.
The draft Order updates the statutory test contained in Schedule 1 to the Films Act 1985, which is used to assess whether a film is culturally British and can therefore apply for tax relief on production costs in accordance with Part 15 of the Corporation Tax Act 2009.
The cultural test is a points-based system based on a number of criteria, including the setting, subject matter, characters, language, location, and participants in the production of the film.
Articles 3 to 5 of the draft Order amend the cultural test in paragraphs 4A to 4C of Schedule 1 to the Films Act. The amendments: i) increase the points available if certain percentages of film production work (50% and 80%) take place in the UK; ii) increase the points available for language use; and iii) provide that points awarded for a film’s British setting, subject matter, characters and language will equally be awarded for the same criteria relating to other EEA states.
The effect of the changes is that the number of points available changes from 31 to 35. The pass mark is accordingly changed from 16 to 18 points. To read the draft legislation in full, click here.
Ofcom fines operator of on-demand programme service £1,500 for failure to restrict under 18s viewing sexually explicit material.
Between 25 February and 18 November 2014, users of Mr James Farey’s “HardGlam” services, including under-18s, could access sexually explicit R18 equivalent material. There was no system in place to restrict minors from accessing it. The Authority for Television On Demand (ATVOD) had originally found the website in breach of its Rule 11 in April 2014.
ATVOD’s guidance to Rule 11 explains the type of restrictions a provider should put in place around R18 content to ensure minors cannot usually access it. As HardGlam was not in compliance with Rule 11, during the period in question, ATVOD referred the service to Ofcom for consideration of a sanction. Ofcom also considered breaches of ATVOD’s Rules 1 and 4, which relate to notifying ATVOD that a service is providing relevant content and paying a fee.
Ofcom confirmed breaches of Rules 1, 4 and 11 had occurred and also considered evidence as to the gravity and duration of the breaches and their potential impact on minors. Ofcom decided that the breaches were sufficiently serious, repeated and reckless to justify the imposition of a financial penalty. To read Ofcom’s decision in full, click here.
Gambling & Betting
Government publishes call for evidence on lotteries.
Essentially, the Government is seeking evidence exploring the current balance across society lotteries, The National Lottery, and competing gambling products in raising funds for good causes and maintaining player protection.
The Government explains that it has now been nearly a decade since the introduction of the Gambling Act 2005, which governs society lotteries. In that time, and in recent years particularly, there have been rapid developments in the lottery and commercial gambling sector. Strong growth in society lotteries, a trend to online gaming and innovations in products and marketing have seen, arguably, a convergence in the market; the evidence available would suggest the characteristics that once made The National Lottery, society lotteries and the commercial gambling sector distinct, are now less clear.
The Government says that it is “committed to ensuring that all lotteries are able to maintain and grow their share of the market for good causes while upholding player protection”. It is also committed to maintaining the health of The National Lottery, it says. It is now calling for evidence to help it look more closely at the current position and consider if changes are required in light of that evidence.
The Government is inviting submissions from across the sectors, from The National Lottery, society lotteries, commercial operators, players and other interested parties. The call for evidence closes on 4 March 2015. To access the call for evidence documentation, click here.
Committee of Advertising Practice publishes advice on targeting of ads for gambling products.
The advice explains that gambling advertising must be prepared with a sense of responsibility to consumers and society, with a particular emphasis on ensuring children are protected. Central to this is the CAP Code requirement that gambling ads are not directed at those aged below 18 years of age through the selection of media or context in which they appear. The Advertising Standards Authority has made clear that advertisers should take the necessary steps to ensure that their marketing is correctly targeted across all media, including email and social media. ASA adjudications show that advertising will not breach the Advertising Codes even where the imagery used is likely to appeal to children provided reasonable safeguards are in place, for example where a webpage is age-restricted to website users who are 18 or over. This contrasts with instances where the ASA has decided that the content of an ad for a gambling product appealed to children whilst appearing in an untargeted medium.
In conclusion the CAP advice states that the key is to consider who the audience is likely to be and to take action where necessary to ensure that advertising is correctly targeted. If using agencies and third parties to place advertising in online media, such as banner advertising or in-game advertising appearing in apps, advertisers should ensure that their advertising is being placed with the appropriate audience in mind. To read the CAP advice on targeting of ads for gambling products (10 December 2014), click here.
Advertising
Committee of Advertising Practice publishes online remit update.
From March 2011, the Advertising Standards Authority began to regulate advertisers’ marketing communications on their own websites and in other non-paid-for space online under their control. CAP’s update is designed to provide a “comprehensive explanation” of the tests the ASA Council applies when determining whether a communication falls within the remit of the CAP Code. The update also contains illustrative ASA remit decisions demonstrating how these tests are applied in practice.
As CAP explains, the ASA Council will take into account the entire context in which claims are made in determining whether the primary purpose of a communication is to sell something and therefore whether it falls within the remit of the CAP Code. Statements of belief, broadly falling within the scope of “causes” or “ideas” communications, do not fall within the non-paid-for online remit of the Code, unless they directly solicit donations. However, if a brand takes user generated content and incorporates it into a marketing communication, or actively promotes it, it will “very likely be considered directly connected with the supply of goods or services” and therefore within the remit of the Code. To read the CAP Online remit update, click here.
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