Calls for 'fudged' ASA digital remit to provide further clarification

Clarity wanted: calls for ASA's digital remit to be reviewed
Clarity wanted: calls for ASA's digital remit to be reviewed

Despite the Advertising Standards Authority's new remit being widely welcomed, some specific areas remain "unclear" fuelling speculation the finer points have been "fudged" to hit deadlines, according to industry legal experts.

The ASA's present remit online includes ads in paid-for space and sales promotions wherever they appear. But from next year, the rules in the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) will apply in full to marketing communications online, including the rules relating to misleading advertising, social responsibility and the protection of children.

The remit will apply to all sectors and all businesses and organisations regardless of size.

Under the new guidelines announced today, the ASA will be able to police brands’ websites and other non-paid for online messages, such as Twitter and Facebook, to ensure they are as accountable as traditional media.

Discussions about extending the remit into the digital space have been in place for a while, fuelled by an increasing number of complaints about websites - it was the second most complained about medium last year despite being outside of the ASA's remit.

Brands which do not comply will have their ads removed by search engines and the ASA itself will put up its own ads, naming and shaming them.

While the ASA said that these new powers extend to marketing communications, rather than editorial, there has not been any guidelines issued to help advertisers to differentiate between the two.

Nick Johnson, head of advertising and sponsorship law at firm Osborne Clarke said certain areas of the remit were "fudged".

He said the remit does not outline whether user generated content on a brand’s site which is moderated, constitutes selling messages. He also believes the remit does not outline whether this applied only to the UK, or UK brands targeting a different market.

He said: "It seems it has been rushed through and it is disappointing that the ASA could not iron out the areas which are unclear".

Robin Grant, managing director of social media agency We Are Social, said that overall the new remit was positive, but agreed parts were too "unclear". Of particular consider for Grant was the perceived "grey area" between what constitutes editorial and marketing copy.

This area of confusion is particularly relevant for social media, which often hosts conversations between brands and consumer. The same uncertainty surrounds whether individual blogs or tweets on company sites, for example, fall into either editorial or marketing.

Johnson and Grant both expect the ASA to adjudicate complaints on a case-by-case basis, without such guidelines, once the new rules kick in from March.

Grant warned: "We don’t want to scare marketers off from social media who could see this new remit as an undue burden."

Andrew Terry, associate and IP specialist at Eversheds, also said the ASA's announcement "raises more questions than it answers".

He questions whether the advertising watchdog will have sufficient new resources to handle the extra workload caused by effectively being told to govern the web as well.

"It has also not explained how it thinks that it can effectively regulate a fast-moving environment like Twitter, when complaints often take several months, if not longer, to resolve," he said.

CAP chairman Andrew Brown said: "Extending the online remit of the ASA has been a top priority for UK industry over the last couple of years.

"Our aim has been to extend further in the online world the principles that are already well established in our system, namely those of effective consumer protection and fair competition."

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