New online advertising code
A new online code is being introduced by the Advertising Standards Authority. What does this mean for NGOs and how can they ensure they comply? Bond member Advocates for International Development provides some answers.
From 1 March 2011, the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) will apply to marketing communications online.
What is the CAP Code, and how is it enforced?
The CAP Code has been in existence since 1961, and was last revised in September 2010. The advertising industry has long taken the view that a self-regulatory code is desirable to maintain standards (without which advertising would be ineffective), to protect consumers and competitors and to fill the gaps where the law is non-existent, ineffective or undesirable. The CAP Code has applied to all non-broadcast marketing communications, including in paid for space online, but not (until now) to organisations’ own websites. It catches marketing communications promoting causes and ideas, not simply goods and services. It does not cover political advertising whose principal function is to influence voters in elections. A parallel code (the BCAP Code) applies to TV and radio.
The Advertising Standards Authority (ASA) is an independent body which investigates complaints about breaches of the two codes. The ASA publishes adjudications weekly. The media will not generally republish or carry advertising against which complaints have been upheld. The ASA’s primary sanction is adverse publicity. Repeat offenders may end up before the Office of Fair Trading or the Charity Commission.
Why and how is the CAP Code being extended?
As the use of the internet as a source of information has increased and expectations of websites have grown, the exclusion of websites has become increasingly difficult to justify. Online advertising targeting children has been a particular concern.
As of 1 March 2011, the existing CAP Code will apply to advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, including user generated content incorporated within marketing communications, or in other non-paid for space online under their control (eg, social networking sites, astroturfing), that are directly connected with the supply or transfers of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fundraising activities.
The extension is not intended to catch editorial or public relations material, and website advertisements by NGOs which do not seek donations will not be caught by the extended rules.
Additional enforcement mechanisms may include search engines removing paid for search advertisements that link directly to the page hosting the non-compliant marketing communication.
What steps should NGOs take to ensure compliance with the Code rules?
Most NGO websites are already likely to be “legal, decent, honest and truthful”. Given the focus of the remit extension on marketing which seeks to sell products or solicit donations, NGOs may wish to ensure that those parts of their website are separate from perhaps more tendentious information about causes and ideas, intended to raise awareness or promote lobbying.
Websites should be reviewed for claims which may mislead. The Code provides that claims must not be likely materially to mislead. Also, before publication, marketers must hold documentary evidence to prove claims that are likely to be regarded as objective and that are capable of objective substantiation.
For example, the use of composites may mislead where it is implied that they represent one case history, when often they comprise an amalgam of experiences, and, claims must not be portrayed as universally accepted if a significant division of informed or scientific opinion exists. So, in 2007, the ASA upheld complaints about a claim in advertising in the national press by the Save Darfur Coalition which stated that “after 3 years, 400,000 innocent men, women and children have been killed…”.
The ASA concluded that:
“although the claim appeared in a strongly worded campaigning ad, and SDC and AT were entitled to express their opinion about the humanitarian crisis in Darfur in strong terms, we concluded that there was a division of informed opinion about the accuracy of the figure contained in the ad and it should not have been presented in such a definitive way”.
On the other hand, in 2010, the ASA rejected complaints about a TV advertisement for WWF and a poster for Oxfam highlighting the risks of global warming (to polar bears and humans). In the Oxfam case evidence from the WHO of 0.2% total mortality in 2004 being attributable to climate change was considered sufficient to support a non-specific reference to people dying thanks to climate change.
Readers may be more tolerant of online material than other media, but NGOs should still ensure that they are not publishing anything that is likely to cause serious or widespread offence, and not cause fear or distress without a justifiable reason (and, if it can be justified, the fear or distress should not be excessive).
In 2006 the ASA upheld complaints about a direct mailing soliciting donations for Save the Children Fund in an envelope which showed a close-up of a child of African origin and the text “if you have brown eyes, you are likely to die young”. The ASA concluded that the mailing was likely to cause undue fear and distress to young children who saw it.
CAP has specific guidance on its website, for example, on voluntary sector advertising, environmental claims and sales promotions. It also offers copy advice and is running briefing sessions on the remit extension.
Do not forget the law
Compliance with the Code will take advertisers a long way towards compliance with the law, but NGOs need also to remember the laws relating to copyright, data protection, lotteries and general charity/trust law.
Written by Rupert Earle, Partner, Bates Wells & Braithwaite, a Partner law firm of A4ID.
Rupert is co author/editor of Advertising Law and Regulation, Bloomsbury Professional, 2010.
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