Is your online marketing legal, decent, honest and truthful?

ASA will be regulating website and social media content from 1st March 2011

In September 2010 the Advertising Standards Association (ASA) announced its first above-the-line marketing campaign in 5 years to generate awareness of the new online marketing regulations that will be coming into effect on the 1st of March 2011. The ASA confirmed that the Committee of Advertising Practice’s (CAP) non-broadcast codes of conduct will now apply to all online marketing communication. This would include content found on company websites, social media sites and paid advertising (PPC). This article will address what is included in this new regulation and who will be most affected by it. Marketers need to ensure that they familiarise themselves with these new rules because it could be detrimental to a brand’s reputation if they are not aware of the changes and do not update website and social content to comply with the CAP codes of conduct.

What does it mean?

The new digital remit is supposed to further enhance safety online and prevent businesses from making false claims about their products or services which cannot be backed up by solid evidence. 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. The ASA’s extended digital media remit aims to protect Internet users and enhance their trust, as well as industry and political confidence, in the medium.”

Construction companies will have to become more stringent with their marketing communication strategies to reassure online users that they can trust the information they are reading online. To put it simply, marketers have to rethink their approach to website and social media content because, as you know, many companies use statements such as “We are UK’s Number 1” “The best in our industry” “Save 20% on transport costs” “40% lighter than…” without having sufficient data to support this claim. Businesses that have used such content in their quotes or positioning statements could now face a serious challenge. However, these regulations are applicable to UK businesses and web addresses so it will become difficult to regulate those companies operating in countries outside the control of the ASA.

“Construction companies using environmental benefits to market their products, claiming they are ‘sustainable’ or ‘better for the environment’ need to be able to provide evidence. It is no longer possible to use such statements, or piggy back off others, in advertising messages or during conversations on social media to try and sell products. These new regulations are aiming to stop companies from using misleading information to make profits and outsell the competition. So be careful when making claims that you cannot back up.”

Pritesh Patel – Digital Marketing Manager


The main reason for this new digital remit was the high number of complaints, since 2008, about marketing communications on websites that the ASA could not deal with. The new regulations will give the ASA the power to control online communications and provide a transparency of online operations as well as clarity of a supplier’s accountability and capability to deliver what is promised on a website or advert.

Following the six month grace period, the remit will come into full force on the 1st of March 2011. During the prior six months, the ASA and CAP are conducting training work to educate companies and raise awareness of the new CAP code requirements, particularly to those who have not previously been subject to ASA regulation. The campaign will consist of 2 phases, the first launches in January to target businesses and promote compliance with the new regulations whilst the second broader campaign in March will target consumers and communicate the ASA’s work and the extension of the remit to online marketing communications.

ASA Adverts

ASA AdvertsAwareness will be increased through donated spaces by media owners across outdoor, radio, digital, print and broadcast platforms. In an article in Marketing Week, Ian Barber the director of communications at the Advertising Association, concludes that:

Awareness will be increased through donated spaces by media owners across outdoor, radio, digital, print and broadcast platforms. In an article in Marketing Week, Ian Barber the director of communications at the Advertising Association, concludes that:

“whether the ASA’s new regulations will have impact remains to be seen. It relies not only on the regulator enforcing its authority, but also on marketers being ahead of the curve in keeping their brand communications – online and offline – out of the regulatory spotlight”

Amy Kean, head of the IAB (Internet Advertising Bureau) social media council, said:

“The ASA’s new remit should be celebrated by the social media industry, as the move will only serve to reinforce the integrity of the discipline and reassure advertisers that the work of their agencies remains ethical and transparent. We intend to spend the next few months helping social media practitioners make sense of the changes with ongoing conversations about how the updated CAP Code will be implemented”

What areas will it cover?

The aim of the new regulations are to make sure that online communications are subject to the same high standards as other media. It will cover advertisers’ own marketing communications on their websites as well as content distributed on non-paid-for space under a company’s control such as social networking sites like Twitter and Facebook.

  • PPC (pay per click) ads – The ASA will now have the power to remove any misleading or unsupported claims. Advertisers need to therefore be very careful of how they describe their offers or competitors and choose their wordings very carefully. The new regulations also allow the ASA to position other ads in the place of those of a ‘malicious’ advertiser.
  • Social media – Because it is a relatively new communication platform it was not as regulated as other advertising fields. However, from the 1st of March this will no longer be the case and social media messages and claims will fall under the same scrutiny as other marketing communications. Company Facebook pages or Twitter accounts need to ensure they do not contain any incorrect information or try to mislead customers into believing their products and/or services are better than they actually are without providing evidence.
  • Advergames – This refers to games that are used to promote a product or company that exist on a business’ own website or on non-paid-for online space. The ones present on paid-for space are already covered by the CAP code.
  • User Generated Content – The regulations will also apply, in some circumstances, to online user-generated content (UGC). If a marketer includes this UGC on their website (whether solicited or unsolicited by website owner), it will be regarded as marketing communications and therefore subject to the same restrictions. Particular care should therefore be taken when using customer/client testimonials.
  • Comparisons with identifiable competitors: Product manufacturers, for example, can no longer casually refer to competitors and how their products are inferior in online messages. As of March 2011 you have to ensure that the way you compare products meets the regulation requirements.
  • Need for substantiation – Have you ever tweeted about how your product/service can save X amount of money or that you are the ‘most recommended’ business in your field of expertise? Well, this is no longer allowed unless you can provide evidence to back up your claim. The ASA may regard claims as misleading in the absence of adequate substantiation and your company will have to face the consequences.

How will it work?

The regulations will bring a new ‘name and shame’ website into play. The impact of appearing on that site will affect business reputation and increase punitive measure way beyond the fines. Especially in the construction industry, recommendations and positive word of mouth are essential to finding and securing new business so potential clients may be less likely to want to do business with you if your company appears on this ‘shame list’. It might ring alarm bells that you cannot actually deliver what you promise and this could lead them to finding business elsewhere. To prevent this, ensure that all information on your website and other communication platforms is accurate and does not mislead prospects or exaggerate the performance and outcomes of your products/services.

The ASA regulations are ‘directly connected with the supply or transfer of goods, services, opportunities and gifts’ which states that its main concern is with marketing communications that intend to sell something. There are different ways of selling a product or service that do not necessarily include price or overtly seeking a financial transaction. It is these messages that will be under the most scrutiny because the selling message is more subtle. The new code includes ‘non-paid-for-space online under [the advertiser’s] control’ which refers to messages on advertiser-controlled social networking pages. This acknowledges the increasing power of social media and that it is an area that also needs to be regulated. Many construction companies discuss how their products are sustainable or can help with carbon reduction. Now it will no longer be possible for them to make such claims without evidence.

What is excluded?

There still seems to be some confusion over what content is to be included in the digital remit. The reason for this is the distinction between ‘marketing communications’ (which is included in the new regulations) and ‘press releases and editorial content’ (which is excluded from the digital remit). Is a press release not a type of marketing communication? Well this is the burning question!

The ASA have stated that journalistic and editorial content relateing to the reporting of ideas or supporting causes will be exempt. The current political and editorial content that is under the CAP code will remain in force as well as the existing exclusions such as corporate reports, PR material, marketing communications in a foreign language and natural listings on a search engine or price comparison page. However, messages that are direct solicitations of fund-raising donations are not going to be excluded and will be regulated by the ASA standards.

“The best advice is to treat all communication as though it is being regulated under the new sanctions. This does not have to be a bad thing because responsible marketers shouldn’t be making claims they can’t prove anyway!”

Ayaan Mohamud – Marketing Assistant

Sanctions for breach

The ASA already has its present sanctions in place but in addition to these, CAP members have agreed to some new ones that will apply to the extended remit. Even though fines cannot be implemented there are various other powerful ways to deal with businesses that don’t observe the new regulations:

  • Removing non-compliant marketing material – With the cooperation of search engines, adverts that link to websites that do not follow the new regulations will be removed. This includes both paid-for search (PPC) and natural search. However, the ASA do understand that search engines listing do take time to replace old content and this is taken into consideration.
  • ASA paid-for search – This means that the ASA can place adverts online which highlight and advertiser’s continued non-compliance. This can have a serious effect on your business and its reputation so make sure you do not breach the new rules.
  • Naming and shaming – Websites and companies that fail to comply could be placed in a ‘rogues gallery’ on the ASA website to which public attention will be drawn through click through adverts on search engine pages.


Who will be most affected?

Any businesses that are promoting and communicating ‘selling’ messages on websites or social sites will be most affected. For the construction industry, product manufacturers, who are pushing environmental benefits and cost saving maybe at most at risk and they need to ensure that all their product claims can be backed up with credible evidence and proof.

It is a common place for product manufacturers to overstate environmental green credentials and with these new enviormental provisions coming into place, they should seek legal advice if developing advertising campaigns which contain green, environmental or sustainable claims.

“Ethical marketing must be at the foreground of marketing campaign development. Be honest and decent, let your products and services do the talking. If you produce high quality goods then the results will be evident. Low quality products and empty promises will no longer work and if you don’t want to be on the ASA ‘name and shame’ list then be honest, clear and straightforward with your messages.”

Nick Pauley – Managing Director

The overall aim of this digital remit is to protect clients and customers from misleading and incorrect content distributed through websites, adverts and social media. It applies to all businesses in all sectors regardless of size.

Where can you go for help and advice?

If you are still unsure about how to go about this then visit the ASA website. A list of FAQs has been published and a ‘program of education’ is due to be released in the next few weeks. Agencies and website owners are encouraged to visit the CAP website to receive guidance and training to help ensure their sites all fully comply with the new regulations before the 1st of March 2011. The IABuk released this video explaining the Digital Remit in greater detail.

If this all seems very overwhelming and you are not sure whether your content or advertising messages will be affected, then please do give us a call on 01908 671 707.

About Stuart Dinnie

Stuart has worked in the world of digital marketing for over 15 years. With his measured and planned approach, he has delivered robust digital strategies for construction companies to achieve real business growth. He now heads up the team at Pauley Creative as Managing Director and is leading his team & clients towards digital marketing excellence. He’s worked with over 100 construction clients; helping them on their digital transformation journey, providing sustainable strategies that return year on year incremental growth, delivering award-winning websites and adding value from board level to marketing assistant.

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