The ASA is an independent body which regulates, investigates and adjudicates on advertising across all media. The UK Advertising Codes lay down rules and standards for advertisers, agencies and media owners to follow. The ASA Codes have a wide remit both in relation to Broadcast (BCAP Code) and Non-Broadcast (CAP Code) advertising and require that all advertisements, wherever they appear, are prepared in a responsible way and do not contain anything likely to be misleading, harmful or offensive. The Codes are written by the Committee and are administered by the ASA. The Codes deal with rules relating to, but not limited to: Misleading Advertising, Sales Promotions, Distance Selling, Food, Alcohol, Children, Political Advertisements, Gambling and much more. The majority of ASA work deals with Magazine, Radio/TV and TV shopping channel adverts. Recently, the ASA remit was extended to include all online advertising (whether paid for or not and including social media websites) which has significantly increased the work of the ASA.
The role of the ASA is to ensure that all advertisements are ‘legal, decent, honest and truthful’. Their extended remit further enhances consumer protection. With this in view there have been several complaints to the ASA regarding advertisements on Facebook relating to Sales Promotions. There have been 2 complaints recently which the ASA have upheld relating specifically to breaches of the parts of the Codes dealing with Misleading Advertising and Sales Promotions. In both cases, the allegations that the terms and conditions for an online competition which had been varied during the competition led to consumers being disappointed were upheld and confirmed by the ASA who stated that such actions were ‘unfair and inequitable’. Under section 8.1 of the Code on Sales Promotions, promoters are responsible for all aspects and stages of their promotions combined with an obligation to avoid causing unnecessary disappointment. This is a lesson to online, advertisers especially those advertising in non-paid for space, that the Codes are being vigorously applied to these spaces and that they shall not be enforced to any lesser degree by virtue of the fact that they are unpaid.
A Sales promotion must comply with all relevant legislation namely; the Gambling Act 2005 as well as the Data Protection Act 1998 and other consumer legislation. The sales promotions’ terms and conditions need to be clear and should not give the consumer any grounds for query and complaint. As well as the general administration of the promotion, availability should be likely so that the advertiser should be able to demonstrate that he can supply the goods.
Likewise, with Twitter, a recent ruling was upheld against 3 Mobile phone network who had a comparative misleading advertisement claiming to give the best value for a £10 top up by offering ‘100 mobile minutes, 500 MB of internet and 3000 texts’. However, 3 Mobile did exclude another company called Giff Gaff who in fact offered a better package. 3 Mobile had failed to compare their offer with all mobile service providers.
Their claim was therefore inaccurate and misleading.
Another Twitter case involved the Manchester United and England star Wayne Rooney (and Jack Wilshere) who used his own twitter account to pass off an advertisement for Nike as a personal comment, without clearly identifying that it was a promotion for the sportswear manufacturer. It included a link to a Nike video used to promote the brand as part of its’ ‘Make It Count campaign’ and it would not have been obvious to all the twitter followers that this was part of the general Nike advertising campaign. Further, people may not even have been aware of the sponsorship between the footballer(s), the team(s) and Nike. For the advertising watchdog, the issue lay with the fact that it was not obvious whether or not it was a ‘marketing communication’. It is an interesting and yet contentious example to illustrate that the distinction between personal comment or opinion and marketing can become blurred when posted on a social media platform. The complaint was upheld. The Code requires that marketing communications are not just ‘identifiable’ as such but that they are ‘obviously identifiable’.
In conclusion, it can be said that the extension of the ASA’s remit to online advertising can only be of direct benefit to the consumer as advertisers can often fall foul of the Code. This is becoming a more common and prevalent problem across social media platforms such as Facebook today where we find many businesses breaching the Code and other legislation by for example, posting competitions and prize draws without adhering to the rules of law and the rules of the regulators in these areas or indeed the rules set down by the site itself. The ASA’s extensive remit continues to serve as a warning to all advertisers that spurious and misleading adverts will always be open to challenge.
If you have an advertising campaign and you are unsure about whether or not it has potential to breach the relevant Code, please call Hanne & Co Solicitors on 020 7228 0017 (or email us at firstname.lastname@example.org) who would be happy to assist you.