Bigmouthmedia, CAP and ASA in 2011

8/7/2019 Bigmouthmedia, CAP and ASA in 2011

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CAP Expansion into Digital

Andrew Girdwood

Media Innovations Director

bigmouthmedia

David Hardy

Media Development Director

bigmouthmedia

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ASACAP


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ASACAP

AP code expansion into digital

In March, the Advertising Standards Authority will expand theCommittee of Advertising Practice to cover the digital sector. The

precise details of how this will affect online advertisers are yet to

emerge, but what is certain is that digital marketers will need to

ensure that in future; every strategy they launch is able to withstand

more intense scrutiny than ever before.

The CAP code addresses socially responsible and truthful advertising,

maintaining that digital teams should be responsible with regard to their

consumer campaigns and ensure they uphold taste, decency and fairness at

all times. A subject the UK government is very much behind at the moment, it is

expected to become an important running theme over the years ahead.

While discussion over its practical implications will

dominate much of the year, the move is almost certain to

result in a tougher regulatory regime for all online activity.

Digital marketers will need to be careful of the competitive

claims they make, ensure that quoted prices are inclusive of

VAT and other added charges, provide limited stock

warnings and cope with increased regulation around the

health, medical, gambling and charity sectors.

Make no mistake: every aspect of digital marketing is likely

to be affected by the ASAs expansion into the channel and,

given that many of the specifics are to be sorted out using a

blend of precedent and on the fly judgements by a

committee of experts, nobody can be exactly sure how.

Fortunately the regulatory body has demonstrated real willingness to work

alongside the industry as the details are threshed out over the coming months,

but in the meantime there are a number of areas where brands can benefit from

ensuring their online activities will not fall foul of the new rules.


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The CAP code: to infinity and beyond

The organisations existing remit enables the ASA to regulate industry andconsumer facing advertising campaigns according to both the CAP and BCAP

codes of practice, two committees established to maintain advertising standards

with the aim of protecting consumers and promoting fair competition. Both the

CAP and BCAP exist to uphold the key principles of fair advertising: that every

campaign is legal, decent, honest and truthful. However, with a remit going

beyond simple content, the CAP code also addresses the administration of prize

promotions and database use.

The decision to extend the CAPs areas of operation was taken both to ensure

that the code remains media neutral while responding to calls for action from

advertisers seeking fair competition. Pressure has also been brought to bear from

consumer groups wishing to build public trust in online marketing and political

bodies seeking reassurance that he regulatory body is taking the protection of

children and the sensitivity of childhood into consideration.

Clearly, online retailing will be the sector most obviously affected by the change,

with campaigns that speak directly to the consumer about a product or service

coming under the most intense scrutiny. Slogans such as fastest broadband in

the land will be subjected to investigation, for example, as the telecoms sector

finds itself under increasingly close examination.

Marketers are recommended to sign up to the ASAs weekly adjudications email

(see the ASA website).

Whilst this reflects bigmouthmedias current opinion on this issue, the contents of this white

paper are of a general nature only and do not constitute specific advice from bigmouthmediaor the CAP or ASA. This white paper does not take into account your circumstances or needs

and must not be relied upon in place of appropriate professional advice.

BMM/LBi, the CAP and ASA disclaim any and all responsibility and/ or liability for your actions

as a consequence of relying on this white paper.


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Content is key: the new regulatory battleground

Whereas until now digital marketers have largely been forced only to considerthe legality of copy contained within advertising, under the new regulations all

promotional content contained in non paid-for space will now come under the

CAP remit. An extension that takes into consideration all social media platforms,

from now on branded spaces aimed directly at the consumer - such as a

company's Facebook page - will be scrutinised.

While user generated content has hitherto been widely regarded as free

promotion, from now on any marketing communications that start a

conversation with consumers will be open to scrutiny.

The ASA will consider all UGC adopted by the website owner and incorporatedwithin its own marketing communications to fall under its expanded remit. For

example fake reviews, particularly those which are then incorporated into the

website in a testimonial style section, will be considered advertising under the

new code of practice.

There are a range of potential situations where user generated content

currently being adopted by marketers could fall foul of the extended rules. If a

vodka manufacturer invites consumers to send in photos of their drinks parties,

for example, then that distiller is taking editorial ownership of the photos by

posting on the website and must be certain that everyone featured in the

photos is (and looks) over 25. Can they be sure? If not, potential problems lie

ahead.

Similarly, if a brewer maintains a page featuring photos uploaded by fans the

images remain beyond the remit of the CAP code if the brand has not interfered

with, organised or compiled albums made up of the pictures. Once the beer

maker recognises these pictures however, or once fans have tagged themselves

in in the company-created albums, then the photos become subject to the rules

covering alcohol advertising.

Even repeating user commentary can be problematic. If a major retailer using

Twitter retweets a consumer's message regarding a product or offer, for

example, it is considered to have taken the decision to adopt the content and

use it in its marketing communications. From that point the company must be

certain of the availability of the item, that it can substantiate the claims made by

the consumer, and will be held responsible for any discrepancies which

subsequently spark complaints from other users.


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As a general rule of thumb, brands considering retweeting user comments

should remember that while subjective claims such as Brand X is great or

Brand Y has the best dresses on the High Street are simply expressions of thecustomers opinions and so okay, objective claims must be substantiated.

Repeating comments such as Brand A is the fastest car on the market or Brand

B is best for buying laptops, therefore, could result in difficulties further down

the line if the marketer cannot produce evidence to show that the claims are

true.

Brands must also tread carefully around the issue of commercial tweets.

Commercial tweets will fall under the ASAs remit if the content is controlled by

the marketer. If it is not (for example, if the marketer has paid or supplied

products to a consumer, on condition that the consumer tweets about the

marketers products, but leaves the actual content of tweet up to the user), the

message will be outside the ASAs remit but the marketer might be required by

the OFT to disclose their involvement. In the US, adding a disclosure '#spon' or

'#ad' to the end of the tweet seems to be sufficient to remove any issues.


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A question of balance: getting content right

There are several contexts where the ASAs new regulations do not apply. Pressreleases and PR material are excluded, for example, while editorial content,

political advertisements and heritage advertising will not be subject to scrutiny.

While the detail of these issues will evolve over the coming months, there are a

few rules of thumb marketers can apply to keep themselves out of trouble.

Offers, pricing, availability

Any compulsory charges must be included in the upfront price. Optional prices

must be disclosed but need not be included in the headline price, whilecompanies must be clear if prices are dynamic and likely to change.

When promoting any deals or offers, as a general rule users must be one click

away from the complete terms and conditions. Such deals can be extended

occasionally, but extending sales should not be a regular part of the brands

marcoms strategy.

Comparative savings claims must be spelled out in clear English, while cost

comparisons must be substantiated.

Where a site displays deals such as save from 60% or prices start from 2.95, at

least 10% of the items that fall under the offer must be offered at the maximum

saving / minimum price. Similarly, closing dates placed on offers will be subject

to scrutiny if they mislead the consumer into feelings of urgency to purchase.

Better than RRP claims will also be checked under the new regulations, so

marketers claiming that a product is better value that the recommended retail

price must firmly establish the price that the product is generally sold at.

Customer testimonials

Testimonials which are selected and uploaded onto a brand's website will beunder remit as they have been adopted by the company. Companies must

retain the contact details of the client/person who provided the comment or

review.


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Objective claims

Brands making objective claims will need to be able to prove the claims and

substantiate them with evidence if required.

Moderated UGC

Moderating offensive comments on brand owned digital spaces does not

automatically bring all the content in that space within the ASAs remit. As

before, the content that falls within the ASAs remit is content that is adopted or

endorsed by the marketer. For example, if a user posts a comment which claims

a product made them run faster, made their wrinkles disappear or extended

their life by 20 years, and the brand then responds with a comment whichendorses the claim, then they are open to scrutiny under the CAP code.

However, removing offensive comments will not be taken as evidence that all

the remaining comments have been endorsed by the advertiser.

Editorial Comment

Editorial content falls outside the ASAs remit. However, the line between

editorial and marketing content is sometimes difficult to determine.

Consider this situation: An energy company produces a social responsibilityreport on environmental issues. This report increases the amount of customers

buying their energy service or package. Has this report been deliberately used to

sway potential customers into choosing their product over another company's?

Issues will arise when it is unclear whether content is editorial or marketing

material, and a decision will be made according to where the content appears.

The regulatory body will consider the context of the content, the arena within

which it appears and whether it is seen as promoting or as supporting marketing

communications.


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Heritage Advertising

What is considered fair advertising is if companies are celebrating their brands

heritage by featuring old brand messages such as, for example: Guinness is

Good for you. What will induce scrutiny where there is room for complaint is if

the actual message is strategically used to promote new claims, with the context

and space where the message is placed determining the CAPs action.

Employees acting as users

Agency employees giving their own opinions is permissible under the new CAP

code, but if there is belief that the brand is supplying the message or opinion,

then the comment will be regarded as marketing material. Responsibility for acomment or claim lies with the brand and the question should be asked: is the

brand advancing the image of the brand by endorsing the comment or by not

disclosing the identity of the individual making it?


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The impact of the new rules on digital marketing

For all the following types of content see the general rules on pricing and

offers in the previous section.

Search

While SEO copywriters have long been afforded license to make bold claims and

statements in content tailored for organic search purposes, employing a range

of literary tricks enabling them to insert targeted keywords and phrases into text,

these will need to be watched in future.

Under the new rules a page alluding to local services in Manchester, Birmingham

and Liverpool, for example, would be open to having official complaints lodged

against it if the company profiting from these results did not offer services in

those cities. Given that such activities are normal practice for national companies

trading across the UK, there could well be a lot of confusion around the legality

of such tactics when the new ASA rules come into force.

A host of frequently made claims once considered pure marketing spin may also

generate complaints and prompt ASA investigations. Broadband providers will

not be able to lay claim to offering the fastest internet connections available if

they cannot prove it, for example, while companies claiming to be the NumberOne provider of X or the leading supplier of Y could be forced to justify such

claims or face official censure.

Paid SearchAlthough strictly speaking already covered by advertising legislation, complaints

about PPC advertisements are almost certain to increase when the ASAs bid

to regulate the digital channel kicks off in March. With campaigns on services

such as Googles Adwords system coming under greater scrutiny than ever

before, advertisers need to take steps to ensure campaigns remain up to code.

From now on, extra efforts will need to be put into ensuring that the information

contained within PPC adverts is accurate, up to date and avoids misleading

consumers. VAT will need to be included in published prices, for example,

(unless the product is available only to business customers) while vendors will

need to ensure that the products advertised are available.


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Display

While display advertising departments will already be largely familiar with the

regulatory requirements governing the channel, the extension of the ASAs

powers to cover the digital sector will have some impact.

Under the rules brands cannot have inappropriate imagery on adverts appearing

online, while offers displayed on banners must be accurate and clearly defined.

The era of online bait and switch is now over.

There will be more to come as the year rolls on. A cookies and e-privacy debate

is already scheduled to take place in May that will have an impact on the

behavioural targeting of display marketing, so brands will have to remain alert to

potential changes as they move forward in 2011.

MobileOne rather ambiguous area brands need to monitor is the field of mobile display

banner campaigns.

Blind served banners will be difficult to regulate, but an example which could

incur regulatory action would be if a banner displayed during racing games

promoted a fast car. Any advert which promotes speed or risky driving which

could be emulated by consumers in such a context would be under the remit of

the CAP code, meaning that the regulation remains dependent on both the

nature of the game and the tone of the display banner campaign.

This will be a difficult area of regulation for agencies, and they should use every

available system to analyse the data of display banner placement to prevent this

hazard.


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Social MediaSocial media is one of the areas where brands will have to step most carefully as

the details of the new regulations become clear. With consumers able to actively

promote goods and services, exactly who will be charged with responsibility for

their actions remains an issue, opening up a range of potential conflicts and

problems for marketers wishing to use the channel.

The ASAs extension into the digital arena will have implications for user

generated content that makes claims about goods or services if it is adopted or

endorsed by the brand. For example retweets will be considered to fall under

the remit of CAP and if a complaint is made after a brand repeats a consumers

tweet, they will be held responsible for any false or misleading statements.

For example: if a consumer broadcasts a message on twitter suggesting that

Brand X is great because they cured my cold, the brand must not retweet that

statement if it cannot be verified. While highlighting such unsolicited

testimonials is a mainstay of current twitter marketing technique, under the

terms of the new rules it could leave you vulnerable to censure.

Micro LocationThere are almost certain to be issues surrounding advertising and age limits for

sites such as FourSquare which may not yet be sufficiently sensitive to users'

ages. FourSquare offers prizes for 'unlocking' venues, or for treasure hunts, for

example, while giving no consideration to the fact that in the absence of an age

limit, such competitions and offers are potentially being offered to children.

AffiliatesThe affiliate industry has been somewhat self regulatory for some time,

particularly with the increasing prominence of the IAB Affiliate Marketing Council

(AMC). The perceived problems from the community around the ASA/CAP

extension to cover the sector have been around the fact it will now be coming

from an external source, so many practicioners are worried that they will have

little control over its implementation.

Thankfully the ASA have been supportive of the AMC and parties such as

bigmouthmedia in the past, and along with the IAB have been instrumental in


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putting them in front of the community and in developing their understanding

of a very complex industry.

As a result of the diverse range of parties involved, including Affiliates, Networks,

Agencies and Merchants the rule changes have caused some concern about

exactly who is responsible for any breaches of the code. The ASA have been

able to shed some light on this, and it is very dependent on how the

promotional communication is being relayed to consumers, and where the

information has come from.

Any breaches are not automatically going to be the merchants sole

responsibility, which a lot of brands have feared, but will also place a level of

responsibility on the affiliate. It has been made clear by the ASA that they arent

going to go hunting for inaccuracies in hobby blogs, and that the changes areonly really going to impact affiliates who are promoting misleading information.

What is key to take away from this is that nothing has been set in stone. It is

likely to take a high profile case to set a precedent as to how the affiliates

industry will be impacted by this change, but the sector has been becoming

more responsible, more answerable and more regulated in recent years in any

case, meaning that it is more prepared for change than it would have been a few

years ago.

It will absolutely take strong affiliate management to ensure communications,

promotions and affiliate resources are kept accurate and within the coderestrictions to ensure affiliates have the best possible information to promote

brands. It also puts a level of responsibility on the affiliate to make sure what

they are communicating to their own users but this channel has always

entailed affiliates taking on some risk, and bigmouthmedia is confident that this

dynamic industry will continue to roll with the punches and work together to

help manage the ASAs new remit.

There are most definitely grey areas to be contended with however. If a claim is

made to the ASA and the claim is determined as being valid, for example, is it the

fault of the affiliate or the merchant company?

According to the ASA it all depends on the context of the claim. When the claim

originates and legitimately rests with the affiliate marketer, then it is the affiliate

that will be held responsible. There is no definitive code as yet, but it would be

considered best practice for companies to evaluate and be aware of their

affiliates actions.


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Similarly, if the affiliate maintains a feed and has chosen a pay per click action on

a particular deal, and this deal subsequently goes out of date but the affiliate

continues with the deal, then they are, at that point, responsible for anyconsequential complaints. However, if the company continues to feed the offer

to the affiliate after it is out of date, then the company will be held responsible

for any complaints.

Online behavioural advertising

At present, the extension of the ASAs remit does not cover online behavioural

marketing techniques. A new framework covering this is expected later in 2011.


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CAP Expansion into Digital

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Bigmouthmedia, CAP and ASA in 2011