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Advertising across different media - a guide to the regulatory playing field in the UK

We take a look at the current regulatory landscape, some examples of how regulation has adapted to meet the practice of advertising through social media and set out our thoughts on media convergence.

June 2013

Advertising in the UK

Advertising in the UK is effectively regulated by self-regulatory and co-regulatory controls (please see the table below for an overview). The system is a patchwork of codes of conduct, legislation, government and industry guidance and private law rights. The basic rule is that all advertising must be legal, decent, honest, and truthful. In addition, advertising should not mislead or cause harm or serious or widespread offence. Advertisers must have evidence to substantiate any claim made before an advertisement is published or aired. The law prohibits unfair marketing, which includes misleading advertising. It is a criminal offence to make misleading statements.

With media convergence brings challenges and opportunities. Advertisers have an increasing range of media channels through which to reach the consumer, in the UK and worldwide. The UK's self-regulatory approach is proving an efficient one and has been adapting to meet the challenges of media convergence. There are many benefits to the UK's self-regulatory system, in particular, with innovative technologies and changing business models, new rules can be created just as quickly as they can be retracted to adapt to changing practices.

  UK Statute Self-Regulatory Private law rights
Key considerations Consumer Protection from Unfair Trading Regulations 2008
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Business Protection from Misleading Marketing Regulations 2008
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Data Protection Act 1998
1st edition - UK Code of Broadcast Advertising (BCAP Code)
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12th edition - Non-broadcast Advertising, Sales Promotion and Direct Marketing Code (CAP Code)
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The BCAP and CAP Codes are administered by the ASA
Intellectual property rights (trade marks, copyright, design, passing off)
…………………………

Defamation
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Privacy
Other considerations Specific legislation relating to the advertisement of certain products and services (e.g. food, alcohol, gambling and tobacco).
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Government guidance for retailers on pricing – the Pricing Practices Guide issued by the Department for Business Enterprise and Regulatory Reform
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Government guidance on Consumer Protection from Unfair Trading Regulations 2008
Specific rules (e.g. relating to children, food, alcohol, tobacco).
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Sectorial help notes issued by the Committee of Advertising Practice (CAP) (e.g. retailers price comparisons, the use of children in peer-to-peer marketing and as brand ambassadors (read more about this))
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Industry codes of practice (e.g. The Portman Group´s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks)
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Clearing services (e.g. Clearcast (TV advertising), Radio Advertising Clearance Centre and CAP Copy Advice)
Image rights (e.g. of a person in an advertisement) (read more about image rights)
Regulator Office of Fair Trading
…………………………
OFCOM, the UK's independent communications regulator
…………………………
Trading Standards
Advertising Standards Authority (ASA) (the ASA administers the BCAP Code under agreement with OFCOM) N/A – private law rights pursued personally through the courts

UK self-regulation

The Committees of Advertising Practice (CAP) is the self-regulatory body that writes, maintains and enforces the CAP Code and the BCAP Code (Codes). The ASA administers the Codes and investigates and adjudicates on complaints.

LaptopThe ASA is the UK's independent regulators for advertising across all media, including "online advertisements in paid for space (including banner or pop-up advertisements and online video advertisements); paid-for search listings; preferential listings on price comparison sites; viral advertisements; in-game advertisements; commercial classified advertisements; advergames that feature in display advertisements; advertisements transmitted by Bluetooth; advertisements distributed through web widgets and online sales promotions and prize promotions".

The CAP/ASA are financed by the advertising industry through arms-length levies on advertising.

While the Codes are not legally binding, they reflect legal requirements and help fill in any gaps missing in legislation. The Codes deliver an industry wide standard and are a way of resolving complaints and disputes. Advertisers, agencies and media owners have agreed to comply with the Codes to support a high standard in advertising.

Self-regulation of Broadcast and Non-broadcast marketing communications

Broadcast Non-broadcast

Broadcast marketing communications are regulated under a co-regulatory system within a self-regulatory framework under an agreement between the ASA, BCAP and OFCOM. OFCOM is responsible for any major changes to the BCAP Code but apart from this, the ASA and BCAP operate independently.

Generally, broadcast advertising must be cleared with Clearcast or The Radio Advertising Clearance Centre before being aired. UK licensed broadcasters must take reasonable steps to ensure that advertisements broadcast by them comply with the BCAP Code.

Cleared broadcast advertising does not grant immunity against future complaints.

Non-broadcast marketing communications (including an advertiser's own website and online space within their control (e.g. a social media)) is self-regulated by the ASA through the CAP Code.

Due to the high volume of non-broadcast marketing communications, there is no pre-clearance requirement. Advertisements must comply with the CAP Code and relevant legislation.

Like broadcast advertising, if advertising material is cleared by CAP's Copy Advice service, this does not grant immunity against future complaints.

Product placement

TelevisionOnce prohibited, product placement is now permitted in the UK, subject to certain legal requirements. Since February 2011, product placement has been allowed on UK television. Broadcasters are required to alert viewers when programmes containing product placement are aired by using an onscreen logo. With consumers increasingly seeking to find ways of avoiding viewing advertisements between content, alternative methods of advertising, such as product placement, become more important. The rules in this area are quite strict. For example, alcoholic drinks cannot be placed in any programme and no product placement is allowed in children’s programmes.

Programme sponsorship

Sponsorship of television programmes (including series programmes) by advertisers continues to grow and revenues from this activity represent an important income stream for television broadcasters and film makers.

Behavioural advertising

The development of improved and more sophisticated technology for data mining and matching has created new ways to market products and services to consumers. This can be based on their spending habits and preferences. While good for advertisers, this creates data protection challenges (read more about online behaviour advertising).

Private law rights

Advertisers should take care not to infringe the rights of third parties. For example, if an advertisement contains intellectual property owned by a third party (for example, music) or if a person's image is used, permission and perhaps licences should be sought.

Complaints

Consumers, competitors and other interested parties can complain to the ASA about advertising.

CommentThe ASA requires competitor complainants to provide evidence that they have tried to resolve the matter directly with the competitor prior to filing a complaint, unless there is good reason not to do so.

While looking at previous adjudications may give advertisers an indication as to how the Codes are interpreted, the ASA is not bound by them.

Sanctions

The ASA publishes its adjudication of complaints on its website. It also posts a link to the adjudications through its Twitter account. Obviously where the ASA upholds a complaint, this may lead to adverse publicity.

In addition, the ASA has a variety of sanctions available to it, including:

  • requesting the advertiser to change or withdraw its advertising;
  • 'Ad alerts' sent to publishers and broadcasters of advertising material warning them of advertisements in breach of the Codes;
  • requiring the advertiser to have future advertising pre-vetted;
  • in serious cases, referring the advertiser to the Office of Fair Trading;
  • in serious cases, referring the advertiser to OFCOM (broadcast only).

The ASA does not have the power to issue fines.

In limited circumstances, advertisers can appeal against an ASA adjudication. As a last resort judicial review can be sought.

Recent adjudications

In March 2011, the remit of the CAP Code was extended to cover advertisers' own websites and also other non-paid for space online under their control. As the public increasingly consumes content in a variety of ways, non-traditional forms of advertising have become more important. Below we take a look at some recent ASA adjudications on non-traditional marketing communications and how the ASA has applied the CAP Code to these advertisements.

Adjudication on Genting Aldernay dated 9 Jan 2013

Enter on screenKeith Chegwin (a celebrity) posted the tweet "Just a quickie: Log on to pchprizes.co.uk 4 Your chance 2 win £100k plus Win £2,500 a week 4 life. Have a go X". The complainant challenged whether the tweet was a marketing communication and should have been identified as such. Although the tweet was not prompted by the company, it did have a promotional relationship with Keith Chegwin. The ASA found that the tweet was directly linked to this relationship and it was the company's responsibility to ensure it was compliant with the CAP Code. The ASA considered that an identifier such as "#ad" should have been used to make it clear to twitter users that Keith Chegwin was tweeting on behalf of the company.

Adjudication on Toni and Guy dated 11 July 2012

Two tweets were posted by Gemma Collins (a celebrity) about a 10% off promotion at Tony and Guy if "#gemma" was quoted. Toni & Guy confirmed that Gemma Collins had attended the salon and was so impressed, she asked if she could tweet about their service and offer a discount. As a result, they decided to waive the cost of their services to Gemma. Toni and Guy argued that the 10% discount made it clear that the tweet was a marketing communication. The ASA upheld the complaint as in the absence of an identifier, like "ad", the tweet was not obviously identifiable. The ASA noted that people on Twitter will get a number of updates from people they follow throughout the day and they might scroll through quickly. Marketing communications must be obviously identifiable as such.

Adjudication on Nike dated 20 June 2012

Wayne Rooney and Jack Wilshere (premiership footballers) both tweeted about Nike's "Make It Count" campaign by using #makeitcount and a link to Nike's Makeitcount web page. Both tweets did not include anything expressly to say that they were marketing communications. The ASA found that the tweets were in breach of the CAP Code as they were not obviously identifiable as Nike marketing communications. The adjudication makes it clear that, to be clearly identifiable, an indication such as "#ad" needs to be used.

In all of the above cases, the ASA directed that the advertisements "no longer appear" and that, with future advertising, it must be obviously identifiable as such.

Adjudication on Bev Morley dated 12 Dec 2012

This concerned a prize promotion on Twitter advertised by the tweet "mojocomms Follow for a fab #kindle #comp giveaway!!!". The tweet was complained about because the winner had not received the Kindle and the complainant argued that the promotion had not been conducted fairly. The ASA found that the tweet had breached the CAP Code as the terms of the competition were not provided. The ASA considered that a short URL to separate terms would have sufficed. The ASA decided that, in the absence of any terms, the Kindle should have been awarded within 30 days of announcing the winner. The ASA directed Bev Morley to promptly award the prize and to ensure that future promotions were conducted fairly.

These adjudications demonstrate that the ASA will be equally rigorous in its approach to tweeted promotions. In particular, advertisers will need to be careful when requesting third parties to promote their goods or services. If there is a problem, there is a good chance the ASA will, identify and pursue the business behind the promotion, which does not comply with the CAP Code.

The ASA has a particularly wide remit. For the moment, that remit has been drafted widely enough to catch most conceivable forms of advertising.

Convergence

Man holding newspaperMedia convergence is making the regulation of advertising more complex, with the lines between non-broadcast and broadcast media becoming blurred.

As media is consumed through many different channels it is no longer confined to traditional passive broadcast and non-broadcast routes, such as television and print media. The trend is towards an active participatory approach. Consumers will often simultaneous engage with media, for example, watching TV and engaging with media through social networking.

A report published earlier this year by the Internet Advertising Bureau illustrates the change in consumer behaviour through media convergence. A study conducted by PwC for the report, showed that the spend on mobile advertising in the UK alone doubled to £526 million in 2012 from £203 million in 2011.

Media convergence brings great opportunities for advertisers as they are able to capitalise on new methods to reach the consumer. However, with this there are different challenges (e.g. with suitability of content, which may be accessed by children). There is also the issue of an advertiser's potential responsibility for user-generated content that breaches the Codes or cuts across private law rights.

With media convergence, UK advertisers are competing against non-UK advertisers. However, it is questionable whether there would be any discernible benefit from adopting a single market standard for Europe. We believe that, given the cultural, social and digital barriers, a harmonised approach would be difficult to implement and more to the point, ineffective. Our current view is that the UK's  advertising regulatory system is both effective and flexible and geared to deal with the challenges created by media convergence.  If it isn't broke, why fix it?

If you have any questions on this article please contact us.

Definition of advertising

"Media convergence is making the regulation of advertising more complex, with the lines between non-broadcast and broadcast media becoming blurred. "


"As media is consumed through many different channels it is no longer confined to traditional passive broadcast and non-broadcast routes, such as television and print media."