From next week, the Advertising Standards Authority (ASA) extends its grip on content available online.
In this probably very long but, for PR practitioners, a very relevant post in which I look at what this means in practice for the digitally active public relations professional.
At first glance and largely by the way the ASA is promoting the changes, the rules look pervasive, impossible to implement and naive. The promotion of the new standards says:
The new ASA remit will ensure the same high standards as in other media and will cover:
- Advertiser own marketing communications on their own websites and;
- Marketing communications in other non-paid-for space under their control, such as social networking sites like Facebook and Twitter.
A closer look shows a more constructive approach.
Let’s make it clear, I have no interest in people who have any intent in online content to promote in any other way than what is legal, decent, honest and truthful. This post offers no comfort to those who want to rip off or delude internet users. They deserve everything that the online communities will throw at them and the law (and ASA) can sanction. However, there are some considerable gaps in the ASA approach.
The first is one of legitimacy in that the committees involved are advertising and traditional publishing committees. The representative bodies such as the CIPR , PRCA or the association that are of the digital world are not included in the deliberations. The level of digital expertise represented at the table are thin, to say the least.
Secondly, the distinction between Relationships (public relations) Reputation (attributes of a person or brand) and brand (a distinguishing device or token) is very unclear in the rules and regulations. Today, we find that these elements are converging and re-forming because of the power of the digital environments. The, now blurred, distinction between organisations and its paid and unpaid ambassadors is, frankly, becoming hard to see, never mind control. Transparency, Porosity and Internet Agency are well established developments affecting the online environment (as described by the joint CIPR/PRCA Internet Commission in 1999)
In addition, the attributes, values, descriptions, branding and even traded artefacts of organisations, products, services and other activities is becoming very hard to distinguish in this very disruptive world. One simple example serves to explain such a point. It is not unusual for a brand ambassador to copy the logo of a brand to his or her website, Facebook page or mobile device. Internet Agency plays its part like this and in many other ways.
Finally, the distinction in the mind of the consumer between corporate content and advertising and community word of mouth is almost none existent.
This will, inevitably bring ASA into online debate and criticism for being toothless or incompetent or both to the detriment of the advertising industry, the marketer and, innocently though it be, Public Relations.
The Advertising Standards Authority aims to ensure that consumers do not just enjoy the ads they see, but they can trust them too.
Their web site claims that “We build that trust by enforcing the Advertising Codes written by the Committee of Advertising Practice and acting swiftly when marketing communications break the rules.
‘Every week, the ASA’s decisions send out clear signals about what is and is not acceptable in advertising across a wide range of sectors. As a result of its work – and the UK industry’s commitment to advertising responsibly - the vast majority of ads that people see are legal, decent, honest and truthful.’
The Committee of Advertising Practice, (CAP )is a tripartite body made up of the representatives of advertisers, agencies, media owners and other industry groups, all of which “are committed to upholding the highest standards in advertising”.
The Committees of Advertising Practice are the industry bodies responsible for the UK’s Advertising Codes. They also do not include web or social media representative bodies .
What does the announcement really amount to? The relevant parts of the code say that from 1 March 2011, the CAP Code will apply to:
Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.
The drafting of the new remit is framed so as to focus specifically upon material which can be properly accepted as constituting an advertisement or other marketing communication. This responds to a particular challenge of regulating websites and other non-paid-for space online under an advertiser’s control. Websites can include marketing communications and other types of communication including, for example, editorial, public relations e.g. press releases and investor relations material that must properly remain outside the remit of the CAP Code and, therefore, outside the jurisdiction of the ASA.
Were it that simple:
The code
The drafting of the extended digital remit are intended to assist stakeholders, including the ASA, to identify marketing communications coming within the extended digital remit.
Here are the relevant elements (The PDF can be downloaded from the ASA site here) for the practitioner:
3.5. Three important factors arise from the drafting of the extended digital remit:
I. ‘directly connected with supply or transfer of goods, services’ etc: this phrase is intended to identify and bring within the extended digital remit material which can be properly accepted as constituting an advertisement or other marketing communication. It is intended to help distinguish material that will fall within the extended digital remit from other types of communication that will remain outside the CAP Code.
The phrase conveys the primary intent of marketing communications coming within the extended digital remit: to sell something. It is understood that a marketing communication may set out to sell something in a myriad of different ways. It need not necessarily include a price or seek overtly an immediate or short-term financial transaction or include or otherwise refer to a transactional facility. In judging the intent of a communication to sell something, the ASA may call upon one of CAP’s advisory bodies, the General Media Panel, for example, which consists of advertising industry practitioners and acts as a forum to advise the ASA and CAP in its core functions.
II. Marketing communications promoting causes or ideas: the current offline and online remit covers marketing communications promoting causes or ideas. CAP is not aware of any significant call for regulatory action in the area of websites that promote causes or ideas, either by complainants to the ASA, by industry, government or the third sector, to which the advertising self-regulatory system would be an appropriate response. The extended digital remit does not, therefore, cover marketing communications promoting causes or ideas but it does explicitly apply to marketing communications which consist of direct solicitations of donations as part of fund-raising activities. CAP notes the potential for consumer detriment, especially financial loss, arising from these marketing communications. For example, consumer detriment could arise from misleading information about the purpose of the charity or donation being sought.
‘Non-paid-for space online under [the advertiser’s] control’: this phrase covers, although not exclusively, advertisements and other marketing communications on advertiser-controlled pages on social networking websites. Social networking websites have a significant consumer reach, are popular with children and young people and play an increasing role in public policy debates.
Additional assessment criteria
3.6. Determining whether material constitutes an advertisement or other marketing communication coming within the extended digital remit involves a careful assessment of its specific content and the context in which it appears.
3.7. The assessment must consider, on a case-by-case basis, whether it can be reasonably assumed that the advertiser intended to sell something (the primary purpose of a marketing communication). The following additional criteria may assist stakeholders in these assessments but they do not alone determine what can be properly accepted as constituting an advertisement or other marketing communication. For example, depending on the context in which it appears, an advertisement or other marketing communication is likely to consist of commercial communication that:
• has appeared in the same or very similar form as an advertisement in paid-for third party space, or
• may include, or make easily accessible, an “invitation to purchase” as defined by the Consumer Protection from Unfair Trading Regulations 2008 ( “a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase.”)
User-generated content
3.9. User-generated content (UGC) is content created by private individuals. In establishing whether UGC should be regarded as a marketing communication, and consequently fall within the remit of advertising self-regulation, the primary and preliminary areas of enquiry to be considered are:
• Did the website owner originally solicit the submission of UGC from private individuals, then adopt and incorporate it within their own marketing communications?
• Did a private individual provide the website owner, on an unsolicited basis, with material which the website owner subsequently adopted and incorporated within their own marketing communications?
3.10. If the answer to either question is yes, (and of course that the content of the material and the form in which it is re-used by the marketer does itself constitute an advertisement or marketing communication by the marketer) then prima facie the UGC under consideration will be regarded as a marketing communication.
Communications excluded from the extended ASA online digital remit
3.11. Communications that do not constitute an advertisement or other marketing communication coming within the extended digital remit will obviously remain out of remit. (As stated, the extended digital remit does not apply to marketing communications that promote causes or ideas.)
Existing exclusions
3.12. The extended digital remit will not apply to the list of content already excluded by the CAP Code. The most relevant exclusions include:
• Classified private advertisements
• Press releases and other public relations material
• Editorial content
• Political advertisements
• Corporate reports
• Natural listings on a search engine or a price comparison site
• Marketing communications in foreign media
• Claims in marketing communications in media addressed only to medical, dental, veterinary or allied practitioners, that relate to those practitioners expertise
• From the preface to the CAP Code: ‘The Code is primarily concerned with the content of marketing communications and not with… products themselves’
I am still working on where all this leaves us. First of all, is this the right approach or, as websites become progressively more interactive, is there a case for a different and new approach.
Then we can invent scenarios and see where we stand.
A Facebook user who offers readers your products from their Facebook page may make outlandish statements to secure sales and your organisation would be caught (with the over enthusiastic online ambassador) by these regulations. The same applies in Twitter, YouTube and a thousand other sites which have trading platforms.
As content crosses the boundaries between PC, mobile and other channels does their marketing nature change (I can buy with my mobile phone but would look silly taking a PC into the same shop even though the software advertisement is the same for both devices).
Of course this all means that any advertisements in Facebook, Twitter, YouTube etc. must fall within the code. PR agencies will now be governed by these rules.
Then there are the facilities on offer.
If an agency were to offer a blogger who always simply re-produced the media content on offer, how close is this to commissioning an advatorial or advertisement on the blog?
In most cases bloggers, wikimedians, Tweeters and the famous on Facebook are Sole Proprietors. They fall outside of the code.
For most practitioner, these new rules will have no effect in the short term but I think they are build on shifting sand and need to be considered by online professionals and with greater care.
Of course, there is a back stop sanction for miscreants in the UK through the Office of Fair Trading for action under the Consumer Protection from Unfair Trading Regulations 2008 or the Business Protection from Misleading Marketing Regulations 2008.
David Phillips
publicasity
