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ASA turns beady eye on web content

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An industry rule-book for marketing communications in the UK is being amended to cover website content for the first time.

Statements on websites could face sanctions from an industry body as soon as next summer even if they don't break any laws.

The plans involve extending the remit and sanctions of the CAP Code, a set of rules for adverts created by the Committee of Advertising Practice, a self-regulatory body.

Anyone who thinks that an advert is misleading or offensive or in breach of another of the CAP Code's provisions can complain to the Advertising Standards Authority which adjudicates all complaints that fall within the Code's remit.

Sanctions for breaching the CAP Code can include an alert to media organisations that may result in advertising space being denied to an advertiser or a referral to the Office of Fair Trading if laws have been broken. In most findings of a breach, though, the ASA simply orders the advertiser not to repeat an advert. Its adjudications are published, which can result in adverse publicity and most advertisers respect the ASA's decisions.

A significant exclusion from the current CAP Code is "website content, except sales promotions and advertisements in paid-for space". It means that, for example, banner ads appearing on a newspaper's website is within the ASA's jurisdiction – but promotions by that advertiser on its own website are not.

The ASA does not presently invite complaints about website content but still receives more than 2,000 such complaints each year, which it is forced to reject, according to the Advertising Standards Board of Finance (ASBOF), which exists to raise the funds from advertisers needed to run the ASA.

ASBOF's chairman, Winston Fletcher, has been working on the plans to change the current Code. He told OUT-LAW that marketing on websites is falling through a regulatory gap at present.

"At the moment marketing on websites is totally unregulated – they're outside of the ASA's remit," said Fletcher. "This will bring them within the ASA's remit."

A barrier to regulating website content has been the cost of a potentially-significant increase in the volume of adjudications. Fletcher said that the increase is hard to predict.

"We know how many the ASA turn away because they're not in their remit, and we know how many complaints go to the OFT and Ofcom – so we have made an estimate of how many there are likely to be," he said. Fletcher declined to disclose that estimate.

Google has offered seed funding that has made the initiative possible, according to Fletcher. He said that search engines are supporting the initiative because they see it as their responsibility.

"They are at pains to say that they don't control the websites [to which they link] – they don't – nevertheless they accept that they gain advertising revenue from website owners who want to insert links on Google or other search engines to their own sites, so they are gaining advertising revenue on all of this," he said.

Google's UK Managing Director, Matt Brittin, said in a statement: "If people have a complaint about a claim made on a website it's important that it is properly investigated. We support the ASA's aims of providing consumer protection and are happy to help get this up and running for the benefit of UK consumers and businesses."

The sanctions for breaching the rules will differ from those currently available to the ASA but Fletcher said they are not yet finalised.

"The great majority of advertisers immediately accept any ASA adjudication and no big stick is needed," said Fletcher. "There is a fall back for those very small number of advertisers who don't comply and what we are in the process of doing is developing sanctions [for website content] which will deter them from continuing to advertise in a non-compliant way."

A spokesman for Google confirmed to OUT-LAW.COM that these sanctions will not include the removal of a site from Google's index of the web.

Full details of the proposals will be published once formally ratified by ASBOF, CAP, the ASA Council, and by the Advertising Association, whose Digital Media Group undertook the original work on the remit extension. It is anticipated that the extended remit will come into operation during the second half of 2010.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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