ASA pulls the plugs

In the past, you wouldn’t have considered messages on your company’s website, blog or Facebook page to be considered advertising. Since 1 March 2011, they could be. From that date, the Advertising Standards Authority (ASA)’s rules apply in full to online marketing messages, including the rules relating to misleading advertising, social responsibility and the protection of children.

The ASA is the independent watchdog responsible for regulating advertising in the UK. Historically, it has only had the power to regulate adverts in emails, text messages and online advertisements where they are contained in paid-for advertising space.

It now has the power to regulate advertisements and other marketing communications placed by businesses on their own websites and in other non-paid online space under their control.

The ASA’s new remit covers the online advertising and marketing communications of all organisations operating from the UK, including those on their own websites and in other non-paid-for space such as Facebook pages, company blogs, tweets, paid searches, emails, viral marketing and promoted games.

Significantly, user-generated content which constitutes an advertisement will be caught if it’s incorporated within an organisation’s marketing content. This would need to be considered on a case-by-case basis, but some situations may be more clear-cut than others: if an organisation moderates user-generated content so as to remove all negative comments, for example, this is more likely to be considered advertising.

The ASA is unlikely to check websites for non-compliance, although it has said that it may carry out spot checks in relation to persistent offenders. Instead, it will generally rely on receiving complaints from the public.

If the ASA rules that an organisation has breached the rules, it will request it to withdraw or change the offending material. Where an organisation fails to comply, the ASA has further potential sanctions, which include naming and shaming offenders and removing any paid-for search advertisements that link directly to the offender’s website.

Ultimately, the ASA can refer companies to the Office of Fair Trading, which has the power to prosecute under consumer protection and competition laws. And, of course, the ASA’s greatest deterrent may be negative publicity as many of its adjudications are reported in the press.

Alistair Maughan is a partner at Morrison & Foerster, an international law firm