New Regulation of Online Advertising - Last Chance to act

As mentioned in our September 2010 adflash, from 1 March 2011 the remit of the Advertising Standards Authority (the "ASA") will be extended to cover the majority of on-line advertising. This represents a major extension to the ASA’s remit and requires all advertisers with an online presence to take heed.

Extent of Remit

From 1 March, marketing communications on companies' own websites and in other third party space under their control, such as Facebook and Twitter, will have to adhere to the non-broadcast advertising rules as set out in the CAP Code. The new remit is not intended to cover journalistic and editorial content and material related to causes and ideas - except those that are direct solicitation of donations for fund-raising. Of course, in practice, there are likely to be areas of grey over what is within remit - an area which will undoubtedly require continued clarification over time.

Sanctions

As expected, the ASA and CAP have indicated that additional sanctions will be available for infringing online content. These will include the ASA:

• (a) removing paid-for search advertising - essentially the ASA would request search engines to remove ads that link to any page hosting a non-compliant marketing communication; and
• (b) publishing its own paid-for search advertisement to highlight an advertiser’s continued non-compliance with the extended remit.

Implications for Advertisers

Now is the last chance for advertisers to review their online material before the extended remit comes into force.

If it has not been done already advertisers should undertake a major review of their online content to assess what is/is not within scope of the extended remit and what does/does not require amendment to comply with the CAP Code. Going forward advertisers must vet all of their online marketing communications as rigorously as they vet their paid-for advertising.

From the number of complaints that the ASA already receives in relation to online advertisements it is clear that the ASA will investigate a large number of complaints relating to advertisements that were previously outside its scope. Advertisers should be prepared to deal with these investigations by putting the processes and personnel in place now.

Please contact David Bond if you would like further information regarding the remit extension or if you would like assistance auditing your online content.