The ASA/CAP have released a post called: #InfluencingResponsibly: 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.
The Advertising Standards Authority (ASA), as the UK’s advertising regulator, only apply the rules in the CAP Code to advertisements and other marketing communications that fall within its scope. This is a narrower jurisdiction than that of the Competition and Markets Authority (CMA), the UK’s competition and consumer authority, who cover all commercial practices.
It would be next to impossible to detail all of the types of online marketing that the CAP Code covers so our remit guidance here is, as always, indicative rather than exhaustive. It’s also worth bearing in mind that just because an online post isn’t subject to the CAP Code, this doesn’t mean it’s exempt from consumer protection law – including the CMA’s enforcement of labelling requirements, explained in detail here.
From ‘paid-for ad space’ to ‘advertorials’, here we take a look at three key types of online content that fall within the scope of the CAP Code.
‘Paid-for’ ad space online
The Scope of the Code outlines categories of content to which the Code applies (and doesn’t apply). One of the categories that falls within the ASA’s remit is ‘online advertisements in paid-for space’. In practice, ‘paid-for space’ means any type of online space that is normally reserved and sold for the placement of ads.
Banner ads, pop-ups, pre-roll videos, and sponsored search results are all common examples of this type of advertising – as are the ‘promoted’ posts on social media platforms. Even if this ad space has been ‘donated’ to an advertiser for free, it still counts as an ad in ‘paid-for space’ if it is otherwise normally sold as ad space.
When a brand gives an influencer a payment, free item, or other ‘perk’, resulting posts are likely to become subject to consumer protection law enforced by the CMA. When a brand also has control over the content, the ASA can also apply the CAP Code to such posts.
So, for the ASA to take action on an ‘advertorial’, also known as an ‘advertisement feature’, an online post has to fulfil both of the following conditions:
- The content is controlled by the marketer/brand, and
- It is published ‘in exchange for a payment or other reciprocal arrangement’
The term ‘advertorial’ was originally applied to press ads that were written in collaboration with the publication where they appeared, and designed to fit in with its tone and surrounding content, but it also applies to equivalent ads online. If a blogger, vlogger, creator, influencer or other ‘publisher’ has received payment or any other kind of commercial benefit such as a free item from a brand, and the brand has any kind of editorial control over the content the post, it’s likely to fit this definition.
Because these ads don’t appear in conventional ‘ad spaces’, and look very similar to posts that aren’t marketing communications, it’s particularly important for these ads to be presented in a way that makes clear that they’re advertising. The ASA’s research on labelling influencer marketing found that people typically struggle to identify when social media posts by influencers are ads. For more, see our Influencers’ guide to making clear that ads are ads.
The third key category relevant to online advertising is:
h. Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.
In practice, this means that if you have a direct commercial interest in the supply or sale of something (i.e. ‘goods, services, opportunities and gifts’), and you publish online content that is ‘directly connected’ to the sale of that product on your own website or social media feeds, it counts as advertising. For example, if a vlogger has published a book that’s currently for sale, and they refer to that book in a vlog, the section that refers to the book is likely to count as an ad. Likewise, if a brand refers to one of their own products/services on their own website, or in a social media post or reply to a comment, it’s likely to count as an ad.
This definition also applies to ‘affiliate’ ads, i.e. online posts containing an affiliate URL or discount code for a particular brand or product. Because the affiliate is paid in direct proportion to the number of click-throughs or sales that are generated by their post, all references to the brand’s products are ‘directly connected’ to this transaction. They’d therefore need to comply with the Code, and would likely need to be clearly labelled as advertising.