UK Online Marketing Compliance Q&A

UK online marketing compliance summary
UK Online Marketing Compliance Rules.

“Since the Internet can’t decipher nation-state borders, must I adhere to Internet law standards in other countries?” It’s an oft-asked question and the answer is “yes”. To tweak a cliche: When in the UK, do as the British. And since national boundaries are non-existent online, your website is, technically, “in the UK,” which means you should take time to review UK online marketing compliance standards. To help you out, below is a list of frequently asked UK online marketing compliance questions — and answers.

What agency monitors UK online marketing compliance?

UK online marketing compliance standards are monitored by a self-regulatory organization called the Advertising Standards Authority (ASA). The group’s stated duty is to “Regulate the content of advertisements, sales promotions and direct marketing in the UK” by investigating “complaints made about ads, sales promotion or direct marketing.” Guy Parker has been the ASA’s chief executive since 2009.

Is the UK ASA a government agency?

No. The ASA cannot interpret or enforce legislation, but the group’s “Code of Advertising Practice” is reflective of UK legislation. However, the ASA is funded by an “advertising tax.”

If a claim is made in an advertisement, what level of proof is necessary to verify the claim’s accuracy?

Like in the United States, claims made in UK advertisements must be accurate and verifiable. UK online marketing compliance rules state that “before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.”

Is “puffery” or exaggeration allowed under UK online marketing compliance rules?

Puffery and exaggeration are unacceptable according to UK online marketing compliance standards. Official rules state: “No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.”

Does the ASA have authority over online marketing compliance in the United Kingdom?

Since 2011, the ASA has held domain over the following UK online marketing compliance issues:

  1. Advertisements on websites;
  2. Paid-for ads on the Internet, including pop-ups, banners and sponsored links;
  3. Online sales promotion that appears in “British Web Space”;
  4. Email marketing.

Does the ASA have authority over marketing claims made in personal e-mail messages?

Private electronic correspondences do not fall under the purview of the UK Advertising Standards Authority. Though, some confusion exists as to whether or not the ASA can take action on SMS messages. It’s best to consult an attorney who can review your exact campaign and determine if it crosses a legal line.

Do any other agencies monitor aspects of UK online marketing compliance?

Yes, several. Most online advertisers, however, should concern themselves mainly with the Institute of Sales Promotion and the ASA. The Institute of Sales Promotion follows the same rules as the ASA and alerts the ASA when it believes a breach of sales promotion law has occurred. Examples of sales promotions include:

  1. By One Get One Free;
  2. 25% Extra For Free;
  3. Loyalty Rewards;
  4. Lotto, scratch cards, prize drawings.

If I want to make a UK online marketing compliance complaint to the ASA, will my identity be kept confidential?

When the ASA receives a grievance, it is required to keep the complainants’ personally identifiable information (PII) private, unless specifically given permission by the claimant. If, however, the complainant is a competitor of, or has a vested interest in, the subject of the complaint, the claimant must agree to be named. This is done to cut down on petty complaints.

What does the ASA do after it receives a complaint?

When the ASA receives a complaint, it immediately informs the entity being investigated. Then, industry experts investigate the claims and ask for substantiation of any questionable assertions in the marketing material. For example, if you are promoting a weight loss product and promise potential customers that they are “Guaranteed To Lose 20 Pounds in 3 Days!” then you’ll have to provide scientific proof to the ASA that your product consistently results in users losing 20 pounds in 3 days.

When the agency completes its investigation, a summary of findings and recommendations is compiled and sent to the advertiser and complainant. A copy of the report is then submitted to the ASA adjudication council, who votes on the issue and posts its decision online.

What if I do not agree with the ASA’s decision? Are appeals possible?

Appeals are possible. A formal request for one must be made within 21 days of the adjudication and can only be requested by the advertiser or complainant. Moreover, appeals can only be sought when:

  1. New evidence is available;
  2. One of the parties can elucidate a substantial flaw in ASA adjudication or investigation process during their case.

In the case of an appeal, an independent reviewer often enters the fray. The independent reviewer has final say on whether or not an appeal is accepted.

What actual power does the UK Advertising Standards Authority hold?

Though the ASA is not a part of the government, it does wield certain powers like:

  1. Bad publicity;
  2. Copy Control – The ASA can order a brand to have all ads reviewed by CAP (the Copy Advice Team) before publishing;
  3. CAP Compliance Team Intervention – The CAP compliance team administers ASA mandates. The government department performs various tasks to keep the system moving along smoothly. The CAP compliance team will call media owners and instruct them not to accept certain ads.
  4. Direct line to Broadcasting Licensing Authorities and the Office of Fair Trading – The Office of Fair Trading has the power to fine businesses and bring lawsuits. The department works closely with the ASA and comes down hard on repeat offenders if the ASA gives the signal. The Office of Fair Trading derives its authority under the 1998 Control of Misleading Advertising Regulations Act.

What are some notable UK marketing compliance cases?

  1. A 2004 ad for the Apple Power Mac G5 used the phrase “the world’s fastest personal computer.” Since it is a claim that can be proved empirically, the ASA launched an investigation.
  2. In 2008, the ASA banned an Apple iPhone ad that promised the phone could “access all of the Internet.” Since iPhone did not support Flash — and a host of other major plugins – the ASA forbade Apple from using the terminology.
  3. The ASA made the Israeli Tourism Board remove ads that contained a map of the country that included the West Bank, Gaza Strip and Golan Heights.
  4. L’Oreal was forced to stop running ads that included Penelope Cruz, Julia Roberts and Christy Turlington under the premise that the three women were not representative of actual results. Additionally, the ASA decided the ads contained misleading before and after pics.
  5. Brennan was banned from running an ad for the JB7 music player because the copy supposedly “glorified illegal downloading.” In its report, the ASA reasoned that Brennan “repeatedly made reference to the benefits of the product being able to copy music but did not make it clear that it was illegal to do so without permission of the copyright owner.” Another time Brennan was sanctioned for not making clear that a docking station didn’t come with the device.
  6. A local furniture store in Northampton couldn’t use the catch phrase, “Sofa King Low” because the line would likely cause “serious widespread offense.”

Do online marketers in the United States have to worry about the UK Advertising Standards Authority?

Yes! If your ads are accessible in “British web space” it’s under the purview of the ASA.

If you need to speak with a U.S. lawyer well-versed in UK online marketing compliance standards, contact us today.

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