Advertising Standards Authority and the Internet

There has been lots of discussion about press regulation and self regulation of late, with the PCC clearly in need of reform.  There are still voices arguing that self-regulation can work and often the ASA/CAP system is paraded of one such system of self-regulation that works. Certainly, the ASA is an effective organisation, but it is questionable whether it is true self-regulation. It works on the basis that the ASA sanctions have bite as its various members will restrict advertisers’ access to advertising space when advertisers do not comply with the code.  It has a further backstop: the ASA may refer matters to the OFT under the Consumer Protection Regulations or the Business Protection Regulations.  To date, reliance on the backstop powers of the OFT has been very much the exception.  Are things changing, however?

Looking at the decisions of the ASA, a sub strand of cases is appearing. Many of the complained of advertisements appeared on the internet, including quite a number on companies’ own websites.  This raises questions about the ASA (co) regulatory system.  It has been very successful to date, but it has been based on an industry that had effectively a small audience, the media outlets and advertising agencies acting to a large degree as a funnel for the regulatory process, being a relatively small group that allowed ASA rules and rulings to reach out to the advertisers more generally.  Essentially, this was a professional audience.  That has changed: the internet has increased the number of outlets available and introduced the age of the amateur.  While major companies will still have coordinated marketing and advertising and there are professional associations in this field, the internet allows many other undertakings, which do not use these services, to communicate directly with the public, and these companies do not necessarily know or care about the law and/or the CAP code.  While the ignorant and/or wilful exist in any system, Internet marketing exacerbates this phenomenon, even though the CAP runs a copy advice service to which companies from which companies may seek advice.

So, will the system hold? Certainly, matters are being brought to the attention of the ASA, which indicates a visibility for the regulatory system in the eyes of the public, and the ASA quite clearly accepts its jurisdiction in this matter, covering not just adverts (seen as paid-for publications in other bodies’ space) but also statements on companies’ own websites.  Some companies, seem not to be that concerned with compliance, as a number of decisions this week illustrate.

One case concerns the website of Landlord Action Ltd (Landlord Action).  The text on the site read: “Paul Shamplina – Founder. Paul has worked within in [sic] the legal system since 1997 – specialising in landlord/tenant disputes. As a certified bailiff, he has acted on behalf of landlords with bad tenants, and has enormous expertise in the process and in court proceedings”. The question was whether this was misleading given that he no longer was certified.  When the ASA investigated, the company acknowledged this as a possibility, but ‘declined to make any changes or provide a written response’.  The ASA found a violation, but will the company change its website?   A similar lack of regard can be seen from dumbellfit, which failed to respond to the ASA at all (http://www.asa.org.uk/Rulings/Adjudications/2012/10/dumbbellfitcouk/SHP_ADJ_203922.aspx). 

Further problems can be seen in the Babyjabs decision (http://www.asa.org.uk/Rulings/Adjudications/2012/10/BabyJabs-Ltd/SHP_ADJ_204913.aspx).  This is not the first time that the ASA has ruled on the content of the Babyjabs website, upholding the complaints at that time.  The new complaints related to text which, inter alia, stated: ‘The Advertising Standards Authority has ordered BabyJabs to remove information relating to the alleged link between the MMR vaccine and autism. Though the medical authorities strongly refute any link between the MMR vaccine and autism we note that an Italian Court, based on independent medical advice, ruled in March 2012 that the MMR vaccine had caused autism in a 9 year old boy’, which reads rather like a defiance of the ASA’s ruling.  The ASA, in its decision, commented, ‘We were concerned that the advertiser had continued to make similar claims despite their assurance that they would not do so again.’  It then went on to hold that the text on the web pages violated the rules on advertising prescription only medicines (POMs) and determined that the material should not appear again in its current form.  While we do not have figures for the level of defiance/non-compliance, these decisions all come from one week, suggesting that such cases now form a significant percentage of the case load.  In each case, the material is on the company’s own website, so what mechanism does the ASA have for ensuring compliance? 

Currently, the ASA lists the relevant sites on its own website (here: http://www.asa.org.uk/Rulings/Non-compliant-online-advertisers.aspx) and may include advertisers in its Ad Alerts system.  While the ASA takes the view that adverse publicity is its strongest weapon, and indeed this may affect some sites, is it strong enough as a mechanism?  Repeat offenders may be requested to seek advice from the Copy Advice team for a prescribed period before publishing future ads (noted in the LA Muscle decision: http://www.asa.org.uk/Rulings/Adjudications/2012/10/LA-Muscle-Ltd/SHP_ADJ_185032.aspx).  Beyond this, the ASA has relied on neighbouring business sectors for enforcement: so it asks its members to withhold advertising space to non-compliant advertisers, and persistent offenders may be subject to pre-vetting (see e.g. where such advertisers want to use posters).  As regards on-line offenders, CAP can ask internet search websites to remove a marketer’s paid-for search advertisements when those advertisements link to a page on the marketer’s website that hosts non-compliant marketing communications, though the search engines are not necessarily members of the CAP. So, in lieu of that, are we likely to see a greater recourse to the legal backstop: referring matters to the OFT, that is a move further away from ‘neighbouring’ self-regulation to co-regulation? Or, are we content to see standards drop?

Professor Lorna Woods, 28 November 2012

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