How the ASA will monitor the social media networks (analysis)
HBJ Gateley Wareing's Steve Kuncewicz, who specialises in Intellectual Property, Media and Social Media Law, looks at the new rules that allow the ASA to monitor social media channels and what it means for the online marketing industry.
The world or corporate-sponsored Social Media took one more step towards accountability this week - as of Tuesday 1 March, the Advertising Standards Authority ("ASA") now regulates all advertisement online through the CAP code as well as in print. The code now covers "marketing communications" on companies' own websites and on non-paid-for services under their control, including social media platforms such as Twitter, Facebook and LinkedIn.
As always, the devil is in the details – "marketing communications" covers "marketing communications connected with the sale or transfer of goods or services online", regardless of the size of the business in question or the sector in which it operates. So, any complaints over misleading advertisements for (by way of example) a flight abroad which costs significantly more when paying than it does on the airline's homepage may well lead to them being withdrawn. There are some exceptions – press releases and PR material will not be covered, nor will editorial content and "natural" (i.e. not paid-for) appearances in search results and on price comparison sites.
Previous figures suggest that the public has been making a steadily-increasing number of complaints against websites which the ASA would not previously have been able to deal with. It'll be very interesting to look at the number of complaints a year from now, when we should have a better idea of how the system works in practice. In particular, the issue over how businesses can potentially fall foul of the CAP code by "adopting" third party comments on social networks will be a hot topic.
Reaction from the Marketing, Comms, PR and Social Media Industry has been mixed, with some claiming that the new ASA rules are, after all, fairly reasonable and may well legitimise a growing industry. Others, however, point out that enforcing the CAP code online will be difficult mainly due to the fact that many advertisers will be oblivious to the change and that the new regime is underfunded - Google has contributed some "seed capital" but as of yet the online community hasn't committed to funding this new self-regulation in the same way as its print counterpart.
So, does this really matter? The ASA is sometimes seen as a soft touch - sanctions for breach of the CAP Code don't include the ability to award damages or impose fines. They do, however, have other options which tend to produce a high level of compliance, such as denial of advertising space to repeat offenders and the publication of upheld complaints by way of the adjudication process.
All very interesting and perhaps easy to dismiss, but it's very important to remember that the ASA's new digital remit contains some very specific sanctions tailored to the online community, such as an enhanced "name and shame" policy via the ASA website (which may well show up at the higher end of search results when published), the removal of paid and "sponsored" search results that link to the offending "marketing communication) (affecting SEO strategy and general online visibility) and an appearance in the ASA's own paid-for advertisements on search engines publishing the details of serial offenders.
Paid online material has been operating under similar rules for some time now, and how the ASA deals with a vastly-increased number of stakeholders remains to be seen, but having an eye on the CAP code and its aims of making advertisements "legal, decent, honest and truthful" seems like a very good idea.