ASA – In or out? Cross-border media and the ASA’s jurisdiction

The ASA/CAP have released a post called: In or out? Cross-border media and the ASA’s jurisdiction. I have enclosed the text of the link below, but please have a look at the ASA/CAP site as there are lots of things of interest to anyone with an interest in Ethical Marketing.

After consultation CAP updated the wording in the Scope of the CAP Code in relation to jurisdictional matters, with the changes taking effect from February 2021.  For a look at what’s in and what’s out, here’s a bitesize guide to help explain what the Code applies to.

What’s in?

The Code doesn’t apply to ads on websites, apps and cross-border platforms unless they meet at least one of the following criteria:

  • Non-paid-for marketing communications from or by marketers with a UK registered company address.
  • Marketing communications appearing on websites with a “.uk” top-level domain.
  • Paid-for marketing communications from or by marketers targeting people in the UK.

So own websites, social media pages and app content for marketers based in the UK will fall within the scope of the CAP Code.  The reference to “.uk” top-level domain applies to all marketers, regardless of where they’re based.  If your website ends with .co.uk, the CAP Code will apply.

How would an ad target UK consumers?

Paid-for ads will fall within the remit of the Code if they target UK consumers.  The list of criteria that might indicate this isn’t exhaustive, but some things that might be taken into account include:

  • Where it’s appeared – if an ad has appeared on a website based in the UK then it’s likely that it’s targeting a UK audience.
  • By the way they’re served – has an ad been targeted to someone based on their location?
  • The content – is there something about the content that targets UK consumers?  This could take the form of using prices in Pounds Sterling or referring to a product or service that’s only available in the UK.

And what’s out?

  • Non-paid-for marketing communications on websites, apps and cross-border platforms from or by marketers without a UK registered company address.
  • Paid-for marketing communications on websites, apps and cross-border platforms not targeted at UK consumers.

What happens with those?

The ASA is a member of the European Advertising Standards Alliance (EASA) which co-ordinates cross-border complaints between self-regulatory organisations across most members of the European Union and many non-European countries.  If an ad falls outside the scope of the CAP Code the ASA may be able to refer it via this process if there’s an equivalent organisation in that country.

If the ASA isn’t able to refer a complaint via this process (either because a self-regulatory organisation doesn’t exist or isn’t part of EASA), then it will consider taking what action it can if the ad specifically targets UK consumers.

Other factors that would increase the likelihood of a marketing communication being regarded as targeting UK consumers include:

  • Prices being given in Sterling;
  • Consumers being provided with a UK telephone number or geographic address for support;
  • Consumers being invited to visit physical premises in the UK; and
  • The marketer being subject to regulation under UK regimes (for example, being subject to regulation by the Gambling Commission).

What about direct marketing?

The CAP Code will apply to any direct marketing communications (emails, mailings and the like) sent from marketers within the UK.  If sent from abroad they’ll fall within the jurisdiction of the relevant organisation in that country.  In instances where a referral via EASA isn’t possible, the ASA will take what action it can.

Anything else?

For the full detail, you can read CAP’s full statement on the Application of CAP Code to marketing communications appearing on websites, apps and cross-border platforms.

And don’t forget that the Copy Advice team is also on hand to answer any burning questions about jurisdiction.

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