By Shireen Smith
Shireen Smith is a solicitor specialising in intellectual property, technology and internet law. Shireen qualified over 20 years ago and founded Azrights Solicitors 6 years ago. Azrights focuses on helping small and medium enterprises protect and exploit their investment in brands, design, and technology, and advises them on doing business online. Looking after SME clients requires unique skills and knowledge; client needs from an IP lawyer are subtly different to those of big business.
The Advertising Standards Authority (ASA), the UK’s advertising watch-dog, was last year given a broader remit to regulate online marketing, bringing adverts on social networking sites like Facebook and Twitter under the same controls as traditional media.
The ASA’s Previous Position
Previously, the ASA regulated the content of paid advertisements online, sales promotions and direct e-mail marketing in the UK. Investigating complaints and assessing whether paid advertisements are in line with standards requiring, for example, that they do not mislead customers or exaggerate offerings. This was more limited than the ASA’s authority offline, and did not cover messages on companies’ own websites, or free advertising space where control is in the hands of the provider.
Extended Remit Benefits Customers
In 2008-09 the ASA had to reject 3,500 complaints, partly due to the fact that some online marketing was not within the scope of its regulatory role. Now, the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) applies in full to online marketing, and the ASA will take into account misleading advertising, social responsibility and the protection of children online. The ASA therefore now also has authority over unpaid marketing communications on, for example, a company Facebook page.
What is the impact?
Since its remit was extended, the ASA has targeted a number of businesses online, including providers of homeopathic treatments where, after receiving more than 150 complaints, the authority asked online advertisers to refrain from making ‘claims directly or indirectly that homeopathy and homeopathic products can diagnose/treat/help health conditions’. TripAdvisor.com also came under scrutiny, after recent allegations that many of its online reviews are faked.
So, online businesses should be wary, if they weren’t already, to avoid misleading customers or exaggerating their offerings when marketing online. Where websites host non-compliant communications, the ASA can request that search engines take down paid links to those sites, and might even choose to run their own adverts to publicise non-compliance with the rules. If they refuse to comply, advertisers can also expect to be referred to the Office of Fair Trading, and possibly face legal proceedings.
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