Staying on the Right Side of the ASA - Graeme Benstead & Jo Morley - #BrightonSEO


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On the 1st of March the Advertising Standards Authority (ASA) introduced an extended CAP code that will now regulate advertisers’ own marketing communications on their own websites and in other non-paid-for space online under their control including social media platforms.We will be looking out how this affects the digital marketing industry, we what now can and can’t do and what the repercussions will be for non compliance

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  • Hi!Who we are – and arnt... Legal expertsTitleIntroduction - What ASA is and its implications on digital marketing
  • ASA= Advertising Standard authority CAP= Committee of Advertising Practice (They write the codes that are governed by ASA)They cover all off and online paid broadcasting Purpose to make sure Ads we can see are honest, truthful and legal.Funded by Ad Industry 1% of Ad spend and reported on by consumers.What you see is what you get.E-mail marketing Banner and pop-up advertisementsPPCCommercial classified advertisementsPaid-for listings on price comparison sites The ASA is the UK’s independent watchdog committed to maintaining high standards in advertising for the benefit of consumers, advertisers and society at large. They are independent of both the Government and the advertising industry and operate according to published standards of service. The ASA’s authority is recognised by the Government, the courts, other regulators such as the Office of Fair Trading (OFT) and Office of Communications (Ofcom) as the established means of consumer protection from misleading advertising.Over time it has been updated to take account of new technologies and to reflect changes in advertising standards, ensuring the CAP Code remains fit for purpose. Today it applies to marketing communications across all non-broadcast media including online where it already covers advertisements in paid-for space and sales promotions wherever they appear
  • They make sure that any marketing communication, that is ‘a type of communication for a good, service, opportunity or gift that primarily sets out to sell something is truthful about the services they offer and that they can deliver what they promise at the price advertised.’To ensure high standard are retained in the industry
  • Feelgood drinks – misleading – ASA felt that ads suggested feelgood was a health drink - each drink contains 23gms of sugar – 26% of your RDA! BT Consistently Fast Broadband Adverts Banned by UK Advertising AuthorityBy: MarkJ - 25 August, 2010 (7:31 AM) - Score: 3185 - Fixed Line BroadbandThe UK Advertising Standards Authority (ASA) has upheld a swathe of complaints from members of the public, TalkTalk andSky Broadband against a TV advert, three radio ads and a national press ad for BT Retail's Total Broadband service. Crucially the claim "CONSISTENTLY FASTER BROADBAND even at peak times" faced the biggest backlash, not least because of how BT adopts a Traffic Management policy.
  • Miss Sophie Dahl! One of the most complaned about advert is ASA’s history – degrading to women and offensive -
  • Palestine is a land rich in history with a tradition of hospitality. From the famous cities of Jerusalem, Bethlehem, Hebron, Jericho, Nablus, and Gaza, the Palestinian people welcome you to this Holy Land. - Upheld because it suggested Jerusalem was part of Palestinian-administered territory when it was part of Israel.
  • Fake lashes kate!
  • Jo: Its about time! Finally noted that we need to take action for marketing messages online.Big 3 that have had the most complaints: Travel (Flights/Holidays) Broadband Mobile PhonesWe have all had situation where you get sucked in by the offer of a £30 holiday or the fastest EVER broadband that is of course too good to be true...The good news is.............
  • JO:From 1 March, the remit of the Advertising Standards Authority (ASA) is to be extended significantly to deliver more comprehensive consumer protection online. The CAP Code includes rules that help to ensure marketing communications remain decent, legal, honest and truthful. It simply sets out standards that society has deemed necessary, through a process of consultation, to protect consumers and businesses alike. Itis funded entirely by the advertising industry through a 0.1% on advertising space costs.To fund the new remit, the industry has agreed to apply the standard 0.1% levy on paid-for advertisements appearing on internet search engines through media and search agencies
  • Jo
  • Add advert! is the ASA promotional ad designed to raise awareness of the remit to advertisersAlthough the rules have come in to place from March 1st, there has been a 6month grace period where the ASA will be promoted the new rules and gave digital marketers time to deal with them.
  • The official Line.....On 1 March 2011, the CAP Code will apply to: the aboveCAP’s decision to extend the digital remit of the CAP Code endorses and implements the recommendations of the UK advertising industry as represented by the Council of the Advertising Association7. The Council of the ASA has agreed to administer the new remit and the Advertising Standards Boards of Finance (ASBOF)8has confirmed that the advertising industry will fund the regulation of the new remit. As of 1 March, the ASA's digital remit is being extended to cover marketing messages on all websites, blogs and social media platforms such as Twitter, Facebook and LinkedIn.This means that any business, no matter its size or industry, that markets itself via any of these online platforms, needs to ensure it doesn’t breach advertising standards.
  • 1st time online advertising spending in the UK exceeded TV yet this was largely untrackedThe internet is now the second most complained about medium after TV, with around 14% of total complaints.  Over 3500 complaints regarding websites yet it fell outside of remit (57%) no one could do any thingPledge of the conservative Government In its February 2010 manifesto, even the Conservative Party pledged to ‘Tackle currently unregulated marketing on corporate websites targeted at children’ and ‘to shut this regulatory loophole and clamp down on irresponsible online marketing targeted at children’.
  • These changes affect any business that has a website, blog or utilises social media platforms as part of their marketing strategy.Basically any communication that falls within the term marketing communication and has the primaryaim of selling something.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.
  • Basically you will need to be able to substantiate not just everything you say or write on your site, social media platform or blog, but also everything everyone else does too."3.18 ... Quoted prices must include non-optional taxes, duties, etc."3.7 ... must hold evidence for any claims that consumers are likely to believe are objective“"3.17 ... price statements must not mislead by ommission and relate to product listed“"3.9 ... not stating significant limitations or qualifications"Example: ecommerce sitePossible areas which might contravene the code are:Price match to product describedGuaranteed deliveryAvailability claimsTop SEO company – Guaranteed top rankings etc – 1000 web directoriesBT example - ? 12 meg broadband vs 5 meg broadbandWhen there is a range of prices / quality talk about the average, not the top etc.Prove it!
  • Adopting user generated content (UGC) from private individuals that breaches any aspect of the CAP into formal marketing communicationsUser Generated Content used in Marketing Comms (Taking Comments/blog posts and using them on your site )Unsubstantiated RTs or ‘Likes’ (Topshops example)- Photos submitted and then used (Flickr/ Facebook/Twitter)Distance Selling Marketing Messages So marketers planting comments acting as 'consumers' - this would be a banned practice both under the ASA code and under European Law.In general, UGC does not fall under the ASA remit because its content is created by individuals rather than an organisation. However, if the organisation chose to incorporate UGC into its own marketing efforts then it definitely does fall into this new area.As it’s a rather grey area as UGC goes, it will be assessed on a case-by-case basis.Assessing whether UGC amounts to a marketing communication falling within the new remit must be considered on a case-by-case basis, taking particular account of the context in which it is placed.  For example, the ASA is likely to take a very different view of a consumer’s positive comment that has been posted, by the website owner, in a prominent way on the front page of its website, than if that same comment appeared within the context of a consumer message board moderated for harmful and offensive language or images only.Everything you retweet or share needs to be completely true at the time you post it.This includes any user generated content you use as a marketing communication this includes:SharingCommenting onModerate / approveHow do the new rules affect customer reviews?The rules around UCG specify that the new regulations only apply if content is used for marketing purposes.  Part of our concern is that it’s still unclear how the ASA will assess this: arguably, a website itself exists only for either marketing or marketing/sales purposes. However, protecting yourself ‘just in case’ is not complicated and is, in all honesty, best practice that you should already be following for reviewsIt falls within the new remit only if it is adopted and incorporated within an organisation’s own marketing communications on its own website or in other non-paid for space online under the organisation’s control. 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.Misleading tweets – Topshop example – libel for accuracy ofretweetsI know no one in room would leave spammy comments for links sake – with ASAs new remit their may be repercussionsTop shop exampleSocial Media Platform: “non-paid-for space online under [the advertiser’s] control’: Inaccurate or misleading tweets that contain a claim, tweeted by the advertiser or tweeted by a customer and then retweeted by an advertiserInaccurate or misleading facebook copy that contains a claim written by the advertiser themselves or by the customer and then reused by the advertiser Twitter, retweeting user comments makes it fall within the remit (e.g. an availability claim about a product on an ecommerce site).The CAP Code extends to the Charity ‘Liking’ a post on its Facebook page (or even on other Facebook pages of the charity) and to retweeting other people’s tweets on Twitter - what are usually considered to be harmless ways of showing appreciation of your supporters engaging with you in those environments.Before 'liking' or 'retweeting', you should consider whether you can substantiate any claims made, or whether the post is otherwise harmful or offensive.  You should actively participate in your social communities – but if a message or tweet is somewhat dubious in its content, then it would be prudent to not reply, like or RT.Falsespammy comment would also come under this one!Implications that if promoting an offer you must give full details not possible in 140 characters!Distance selling marketing communications must include:9.2.1 the main characteristics of the product9.2.2 the price, including any VAT or other taxes payable (see “Prices” in Section 3: Misleading Advertising, and payment arrangements9.2.3 the amount of any delivery charge9.2.4 the estimated delivery or performance time (see rule 4.9.3) and arrangements9.2.5 a statement that, unless inapplicable (see rule 9.6), consumers have the right to cancel orders for products. Marketers of services must explain how the right to cancel may be affected if the consumer agrees to services beginning less than 7 working days after the contract was concluded. They must,however, make it clear when the services will begin
  • Optimising yourself for a competitors brand nameMarks & Spencer Interflora case
  • Posting a prize draw promotion on Twitter without providing detailed approved terms and conditionsDistance marketing rules
  • About it protecting children from Ads that they are more likely to be susceptible to than adults.Sharing a photo online of a child in a hazardous situation or behaving dangerouslyBenetonCharities
  • It is still unclear just how the ASA will consider active and non-active moderation of forums and UGC. Censoring Reviews: Bad Practice anyway but now falls under the remit Moderating out negative comments and only showing positive ones was one of the specific examples given by the ASA of situations to which the code applies.  Leaving aside all the usual reasons why this is a damaging practice, doing so now guarantees that your review system will be eligible for scrutiny from the ASAFake Reviews: So marketers planting comments acting as 'consumers' - this would be a banned practice both under the ASA code and under European Law._ Unclear How they will track this?
  • The CAP Code also extends to commercial partnership sites. Again this would include, liking, sharing or tagging a comment or post on a blog that is unsubstanciated.This means, that if you are undertaking blogger outreach as part of a campaign, then you should ensure that any commercial benefit received by the blogger is clearly out in the open. This should be the case anyway, and brands that have not historically followed this common sense approach have seen it backfire on them.Another example of this would be if a blogger, with the approval of your company is fundraising on their blog and you have editorial control over the content – particularly, if the blogger has been paid (monetarily or another benefit such as tickets to an event, link exchange, etc). It would be advisable to ensure everything has an audit trail is out in the open so blog readers are informed upfront.
  • ‘editorials’ – paid links??Who is responsible, the advertiser or the advert publisher
  • Examples.....Classified- Gum tree?
  • 6 month grace periodstarted in September and it now enforcableInformal warning at first asked to withdraw AdNo fines- referral to office of fair trade No active policing – Someone will have to make a complaint for them to look into.10% staff increase to deal with complaintsSanctions and penalties in place to deal with non compliance97% compliance rate in previous offline broadcasting.- Like every set of new regulations, advertisers and agencies will have to wait for the first companies to be rapped on the knuckles. - The ASA has said, however, that it would be more likely to work with anyone contravening the code on an informal basis to start with which would lead to no formal adjudication.Underpinning the ability of CAP to maintain and improve high standards in marketing communications is an effective range of sanctions. If a marketing communication is in breach of the Advertising Codes, the marketer responsible is told by the ASA (or the CAP Compliance team) to amend or withdraw it. The vast majority of marketers willingly undertake to do so. If they do not, sanctions are applied, although the possibility of imposing sanctions is often sufficient to secure compliance with the CAP Code. On the very rare occasions that compliance with the CAP Code cannot be secured, CAP may, depending on the nature of the breach, refer a non-broadcast marketer to 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.
  • An enhanced name and shame policy - providing details of an advertiser and the non-compliant marketing communication on a special part of the ASA website. Removal of paid-for search advertising – ads that link to the page hosting the non-compliant marketing communication may be removed with the agreement of the search engines.ASA paid-for search advertisements - the ASA could place advertisements online highlighting an advertiser’s continued non-compliance.Compliance with the rules is high. The ASA’s Digital Media Survey 2008revealed 97% of ads adhered to the Code. 
  • The CAP Code includes rules that help to ensure marketing communications remain decent, legal, honest and truthful. It simply sets out standards that society has deemed necessary, through a process of consultation, to protect consumers and businesses alike. - Legitimises Industry/ Makes more credible- Level playing field (Good news if you were losing out on business to competitors who were making false claims as everyone is now on a level playing felid ) Applies everywhere else so should be online!Stakeholders gain from a cost-free, fast and established complaints-handling service. The marketing community benefits from joined-up regulation, which reinforces the integrity of digital marketing communications and which strengthens the principles of fair competition generally accepted in business. Self-regulation is a faster and cheaper alternative to statutory regulation and its value, as a complement to statutory control, is recognised in important EC Directives including on misleading advertising
  • They do however offer to check your site is compliant with the rules for a hefty £8k an audit which makes it all the more appealing to get to grips with the rules!CAP Services will be providing training and advice to help website owners and agencies get to grips with the new rules between now and 1 March 2011-Ensure ad campaigns stand out without breaking the rules -Understand what is and isn’t acceptable to the ASA -Keep up-to-date with the latest developments and guidance in ad regulation-Help avoid reputational and commercial damage that can come with an upheld ASA adjudicationWhat happens if the site company is registered outside of the UK? They will do what they can to contact the relevant company and try and get content removed
  • Staying on the Right Side of the ASA - Graeme Benstead & Jo Morley - #BrightonSEO

    1. 1. Staying on the right side of ASA<br />
    2. 2. Wh' ASA matter with you?<br />The Advertising Standards Authority (ASA)is the UK’s independent watchdog committed to maintaining high standards in advertising<br />The Committee of Advertising Practice (CAP) are the body responsible for writing the CAP Code.<br />Until recently ASA's remit<br />online included only<br />included paid ads.<br />
    3. 3. What are they for?<br />
    4. 4. truthful<br />
    5. 5. Decent<br />
    6. 6. Legal<br />
    7. 7. Honest<br />
    8. 8. Tube poster for the #ASA: Legal, decent, honest, truthful. Do we need a UK Politicians Advertising Standards Authority? #ukuncut<br />
    9. 9. From 1 March 2011, the Advertising Standards Authority (ASA) will now regulate advertisers’ own marketing communications on their own websites and in other non-paid-for space online under their control. <br />
    10. 10. This means the ASA's digital remit will now cover marketing messages on all websites, blogs and social media platforms such as Twitter, Facebook and LinkedIn.<br />For ALL businesses no matter what the size or type.<br />
    11. 11.
    12. 12. “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.”<br />
    13. 13. Why now?<br /><ul><li>1st time online advertising spending in the UK exceeded TV yet this was largely untracked
    14. 14. The internet is now the second most complained about medium after TV  
    15. 15. Over 3500 complaints regarding websites that fell outside of remit
    16. 16. Pledge of the conservative Government </li></li></ul><li>How all this effects digital marketers<br />
    17. 17. Claims you can’t back up<br />
    18. 18. Social Media Implications<br />“ Non Paid for Space under Advertisers control”<br /><ul><li>User Generated Content used in Marketing Comms
    19. 19. Unsubstantiated RTs or ‘Likes’</li></ul>-Photos submitted and then used (Flickr/ Facebook/Twitter)<br /><ul><li>Distance Selling Marketing Messages </li></li></ul><li>Taking advantage of competitor’s trademarks<br />
    20. 20. Prize draws<br />
    21. 21. Child safety<br />
    22. 22. Forums and Reviews<br />-Censoring negative reviews<br />- Making false reviews yourself<br />
    23. 23. Blogger Outreach <br />
    24. 24. Undisclosed paid <br />promotions <br />
    25. 25. What you CAN still do within the CAP code...<br />-press releases and other public relations material<br />-editorial content<br />-corporate reports<br />-investor relations material<br />Natural listings on a search engine or price comparison site, will not be included <br />"heritage" advertising (e.g. old Guinness advert videos) as long as they're placed within appropriate context.<br />
    26. 26. Poppin’ a CAP in Yo’ ASA<br />Are the new codes enforceable?<br />
    27. 27. What are the penalties?<br />Name and Shame<br />The ASA could place advertisements online highlighting an advertiser’s continued non-compliance.<br />Removal of online rights and PPC Ads <br />
    28. 28. So is this Good or bad for the industry???<br /><ul><li>Legitimises digital marketing Industry
    29. 29. Makes social media more credible
    30. 30. Puts everyone on an even playing field.
    31. 31. Already applies elsewhere so why not online?
    32. 32. Freedom of speech?</li></li></ul><li>Clarity Please?<br /><ul><li>Unfortunately not.....
    33. 33. The CAP code has been heavily criticised for not being clear on the implications of the new rules or for providing examples of what we now cant do.
    34. 34. CAP training is available and they will be offering site audits for those who are unsure (£8k though!!!)</li></li></ul><li>Watch this space.....<br />And your back......<br />
    35. 35. Take Aways:<br /><ul><li>CAP Code now covers all online spaces’ marketing communications
    36. 36. This includes social media, reviews and blogs.
    37. 37. Won’t be actively policed but self regulated by individuals reporting
    38. 38. Penalties include name and shame and removal of paid ads.</li>