Self-regulation of non-broadcast advertisingThe self-regulation system works because it is powered and driven by a sense of corporate social responsibility amongst the advertising industry. Advertisers have an interest in maintaining the system because:
- Making sure that consumers are not misled, harmed or offended by ads helps to maintain consumer confidence in advertising. Advertising that is welcomed by consumers is good for business.
- It maintains a level playing field amongst businesses. It is important for fair competition that all advertisers play by the same rules.
- Maintaining self-regulation is much more cost-effective for advertisers than paying the legal costs of a court case.
However, the industry does not administer its own rules. That’s why it established the ASA as the independent body that investigates complaints and rules on whether ads should be changed or withdrawn.
The ASA is in the forefront worldwide of the challenge to regulate rapidly evolving advertising techniques including online behavioural advertising, native advertising and influencer advertising (eg. in social media platforms like YouTube, Instagram and Twitter).
The Advertising Codes reflects the law, which means that, where appropriate, they reflect the standards required in law, e.g. misleading advertising. The advertising industry has chosen to add this extra layer of rules that sit alongside and on top of law not only to make further laws unnecessary, but also as a public demonstration of its commitment to high standards in advertising.
Interaction with the lawAcross the European Union (EU) a piece of consumer protection law, the Unfair Commercial Practices Directive, is designed to prevent misleading or unfair trading practices. It has been converted into UK law to make sure that we have the same rules as all the other countries in the EU.
The ASA works within this legal framework to make sure that UK advertising is not misleading or unfair. The ASA is able to refer advertisers who persistently break the Advertising Codes and don’t work with us to other bodies for the further action, such as Trading Standards.
The ASA is considered the ‘established means’ for keeping advertisers in line with both these pieces of legislation. This means that the law itself is not usually enforced formally through the courts; instead the ASA is first allowed to tackle any problems under the Advertising Codes. This approach works well in the overwhelming majority of cases. The ASA is able to take action quickly and this avoids clogging up our court system.
Referral to Trading Standards is rarely necessary, as most advertisers prefer to work within the self-regulatory system.
Co-regulation of broadcast advertisingIn November 2004, the ASA took over responsibility for regulating broadcast (TV and radio) advertising in the UK. Prior to this, broadcast advertising was regulated by Ofcom.
This change simplified regulation for consumers and business and meant that, for the first time, decisions about ad campaigns running across several media platforms e.g. TV, poster and radio, were made by a single organisation.
Ofcom still has overall legal responsibility to maintain standards in broadcast advertising. However, the Communications Act 2003 placed a duty upon Ofcom to look at alternative forms of regulation where practical. As such, Ofcom established a co-regulatory partnership with the ASA in 2004.
In practice, this means that the ASA is responsible on a day-to-day basis for regulating the content of broadcast ads. The Broadcast Committee of Advertising Practice (BCAP) is responsible for writing and maintaining the UK Code of Broadcast Advertising, but Ofcom retains overall sign-off on major changes to the Code.
While the ASA is responsible for applying the Code, it is able to refer broadcasters to Ofcom for further action, if needed. This is extremely rare.
The system has been described as self-regulation within a co-regulatory framework. It is underpinned by an “enabling statutory instrument”, The Contracting Out (Functions Relating to Broadcast Advertising) and Specification of Relevant Functions Order 2004 and a formal Deed between Ofcom and the ASA (Broadcast), BCAP and Basbof. The arrangement is monitored against clear reporting obligations and key performance indicators.