By Chris Lee

The Advertising Standards Authority (ASA) has announced that it plans to extend its digital remit beyond its current concern – ads in paid-for space and other sales promotions online. From spring next year the rules of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing – known as the CAP Code – “will apply in full to marketing communications online, including the rules relating to misleading advertising, social responsibility and the protection of children”.

The ASA says this is due to the changing nature of marketing in the digital space and the body said that from 2008 to 2009 3,500 complaints to the ASA about the content of organisations’ own websites were rejected because they fell outside the remit of the CAP Code. Full details can be found here.

Grey areas

While accepting that regulation is essential to protect the vulnerable online, some in the PR industry have raised concerns that the new CAP Code remits need clarification and further consultation.

Jane Franklin, Client Services Director at communications consultancy Immediate Future, believes that the remit raises questions about content, such as tweets or the hosting of live social media feed on an advertiser’s site, for example, and whether that constitutes “promotion”.

Marketing communications falls under the CAP Code while press releases on a company website are exempt. But “editorial” and “marketing communications material” can be difficult to distinguish, Franklin argues, as PR covers more than just press releases and many different forms of content may be used to grab the attention of influencers.

“If those influencers are professional journalists they are deemed capable of making up their own mind about PR material,” she said. “What about bloggers? At which point do they move from interested member of the public who needs protecting by the Code, to media professional who can apply a different set of criteria to evaluating marketing material?”

More questions to answer

In her blog, Franklin outlines the questions she believes need answering:

• What is the difference between marketing communication and editorial on a website – and will the decision be made based on solely ASA assessment?
• Is an RSS or Twitter feed that pulls UGC onto a company website considered promotion and therefore covered by the code?
• When will the “name and shame” site come into play? While the Code is still being defined advertisers could easily fall foul. If the point of contention is an ambiguous one, will there be negotiation room around the complaint or could a brand fall victim to a temporary ambiguity, while the judgement remains online for perpetuity?

Franklin concludes: “Perhaps the biggest question that remains however, is this: given the ambiguity between editorial, PR and marketing, why was the CIPR [Chartered Institute of Public Relations] not even consulted?”

In its own response to the ASA’s announcement the CIPR questions whether the Code accounts for the dialogue-based nature of social media compared to the one-way notion of advertising.

"We are disappointed this action has been taken without our involvement," says Ann Mealor, interim CEO at the CIPR. "We are writing to the ASA regarding our concerns and advocating the need for closer working relationships on this issue."