New ASA digital remit leaves too many questions unanswered

The extension of the ASA’s CAP code to cover digital marketing communications – both on brand’s own websites, but also through social media, has been driven by a need to close the gap related to companies’ claims online, in particular to regulate marketing to children.

There is no doubt that regulation is essential to protect the vulnerable. And to give brands clear guidance on accepted professional standards of communication. Everybody benefits.

At face value, the digital extension is clear: online communications that are generated or commissioned by a brand fall under the CAP code’s remit. All you need to do to ascertain liability is ‘follow the money.’

But is it really that clear cut?

Marketing communications falls under the Code; press releases on a company website are exempt. But ‘editorial’ and ‘marketing communications material’ can be difficult to distinguish. PR covers more than just press releases. Many different forms of content may be used to grab the attention of influencers.

And many different flavours of influencers may be engaged. If those influencers are professional journalists they are deemed capable of making up their own mind about PR material. What about bloggers? At which point do they move from interested member of the public who needs protecting by the Code, to media professional who can apply a different set of criteria to evaluating marketing material?

ASASo what is marketing promotion?


Beyond online PR, the non-paid-for space online presents even more shades of grey. If a brand commissions user generated content (UGC) which is shared online, that communications piece falls under the CAP code digital remit. Unsolicited UGC is not covered. Promoting unsolicited UGC is covered. So what is considered a marketing promotion?

  • Is a tweet highlighting UGC a brand admires to be considered under regulation?
  • Is hosting a conversation through a live social media feed on an advertisers’ website, promotion?

There are many challenges here for social media marketing.

  • Advertisers may have many different social media estates. These are not always managed at a senior level and engagement with those sites is not always defined. There is a potential that this extension will add to the fear of social media that already stops many companies from taking part.
  • Those individuals already engaging in social media activities will need a level of communications expertise and an understanding of regulations that may be unfamiliar and outside of their experience.
  • Hat tipping trends and influencer comment has become common amongst social savvy brands. This will now need some forethought to prevent false claims.

ASA will risk your brand reputation

Another concern is the risk to reputation represented by the planned ASA ‘outing’ of non compliant brands.

Even under the existing code, long after reparation is made, an adjudication can still show up high on a search engine results page. The new Code will bring a new ‘name and shame’ site into play. The impact of appearing on that site will affect business and increase punitive measure way beyond the fines.

The industry needs clarity

We have many questions that the Code as yet leaves unanswered:

  • What is the difference between marketing communication and editorial on a website – and will the decision be made based on solely ASA assessment?
  • Is an RSS or Twitter feed that pulls UGC onto a company website considered promotion and therefore covered by the code?
  • When will the ‘name and shame’ site come into play? While the Code is still being defined advertisers could easily fall foul. If the point of contention is an ambiguous one, will there be negotiation room around the complaint or could a brand fall victim to a temporary ambiguity, while the judgement remains online for perpetuity?

Perhaps the biggest question that remains however, is this: given the ambiguity between editorial, PR and marketing, why was the CIPR not even consulted?

© ASA. Logo.

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