Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.


Since 2011 the CAP Code has applied to advertising on a company’s own website or in other non-paid-for space online under their control (See ‘Remit: Social media’), but this doesn’t mean that the Code covers everything online. Firstly, as a UK Code, it necessarily excludes material in ‘foreign media’ (See ‘Remit: Country of origin’).

Aside from jurisdiction the Scope of the Code is carefully worded, and intentionally so, to ensure that it only applies to material that can be properly considered to be advertising. That is, material which is directly connected with the supply of goods, services, opportunities or gifts, or which consists of a direct solicitation of donations.

ASA rulings don’t often examine issues of remit in any great detail, or at least not in a way that is immediately obvious to the casual observer. These determinations are usually made before a complaint reaches investigation and, although the ASA Council always have the final say, often initially by the ASA Executive under delegated authority.

To be clear, the fact that material is covered by the Code doesn’t necessarily mean it’s in breach, just that the rules apply to the content as they do for any other ad.

Deciding whether material can be considered an ad in these circumstances involves an assessment of both the content and the context in order to decide whether it reasonably intends to ‘sell’ something. The ASA is likely to consider material to be within remit when it is;

and either: or The ASA will also consider whether the claims feature in material that would be covered by one of the exclusions specified in the Scope of the Code. If so, it may be less likely to be considered an ad.
 

By or from a company, organisation or sole trader on their own website or in other non-paid-for space online under their control

The Code is intended to cover marketing communications that are commercial in nature and therefore doesn’t cover material solely produced by members of the public, even if they are trying to ‘sell’ something (See ‘Remit: Classified ads and third party retail platforms’).

If a company, organisation or sole trader owns a website and ‘controls’ the content it is considered to be their ‘own website’. The fact that a company may have contracted out the control to a website developer would not prevent the ASA from considering it to be the company’s own website.
 

‘Non-paid-for space online’ includes any third-party website where the content is controlled by the advertiser including a brand’s Twitter feed, Facebook page and any other social media channels (See ‘Remit: Social media’).

Directly connected with the supply or transfer of goods, services, opportunities and gifts

This is intended to identify material which can be properly accepted as constituting an advertisement or other marketing communication and conveys the primary intent of marketing communications: to sell something.

An ad can set out to ‘sell’ something in a number of different ways and it need not necessarily include a price, seek an immediate financial transaction or include or otherwise refer to a transactional facility – although these elements might lead the ASA to more neatly consider the claim(s) to be ‘directly connected’. A page which made claims about a product and provided the facility for consumers to purchase directly from the website was considered to be directly connected with the supply or transfer of goods and therefore within the remit of the Code (Hutchison 3G UK Ltd t/a 3, 4 September 2013).

The ASA makes decisions in this area on a case by case basis, but it is useful to consider whether a consumer is likely to have their transactional decisions influenced by the material. If so, it’s very likely that the claim would be considered ‘directly connected’.

Efficacy claims for a product or service are very likely to be considered ‘directly connected’. Claims about the treatment of medical conditions on websites promoting alternative therapy services and training courses to learn to practice the therapy have previously been considered to be within the Scope of the Code (Ana Durning, 12 October 2011; Steve Scrutton Homeopathy, 8 August 2012; CNM The College of Naturopathic Medicine Ltd, 13 March 2013; Zeetech Services Ltd, 19 March 2014).

Claims which describe or provide information about a product or service may also be considered within remit. Information about the content of a book reproduced from the back page and the opening hours of a health club have previously been considered within remit by the ASA (Amazon Europe Core Sarl, 10 July 2013; Bannatyne Fitness Ltd, 15 January 2014).

Comparative claims are also likely to be considered ‘directly connected’ as they tend to present the marketer as a more favourable option. A table which reproduced data from an industry regulator comparing success rates was considered to be marketing for the service (A.R.G. C. Ltd, 24 April 2013).
 

A direct solicitation of donations as part of the advertiser’s own fund-raising activities

Material which solely promotes a ‘cause or idea’ and appears in ‘non-paid for space’ is excluded from the Code both online and offline. In online space, this usually applies to charity and pressure-group websites and an invitation to sign a petition alone would not bring such content into remit (See ‘Remit: Cause or idea marketing’).

However, if the material invites consumers to make a donation then the ASA is likely to view this as within the scope of the Code. It’s important to note that the solicitation of donations must be ‘direct’ so merely having a ‘donate’ button in the website’s architecture that is visible on every page would not necessarily bring every page into remit.
 

What are the exclusions?

There are a few specific exclusions for online content in the Scope of the Code, but this is by no means exhaustive, and there are also a number of other exclusions which are as relevant online as they are offline.

It should also be borne in mind that content can overcome context in some cases. For example, if the content clearly intends to ‘sell’ something through explicit calls to action or links to purchase a product, some material that could technically be considered as falling within an exemption may nevertheless be considered an ad that ultimately falls within remit.
Some of the most relevant types of material covered by exclusions includes, but is not limited to;

Claims addressed only to medical practitioners that relate to their expertise

Claims in ads which appear in media solely targeted at medical professionals, both online and offline, and which relate to those practitioners’ expertise are excluded from the Code (See 'Remit: Health-related claims addressed to medical practitioners').
 

Statutory, public, police and other official notices or information, produced by public authorities and the like

If the material is clearly for information purposes and not advertising, for example a page on a public authority’s website entitled "How to complain about the Council" or “Bin collection dates”, it is likely to be considered beyond the scope of the Code.

However, marketing communications from public authorities, such as material which encourages people to take up a service they are not already receiving, remain within remit (See 'Remit: Official notices or information').
 

Press releases and other public relations material

Press releases are generally targeted at journalists with the hopes of them creating a piece of editorial content rather than at consumers with the intention of making a sale. As such, they are excluded from the Scope of the Code provided that they are placed in an appropriate context, for example in a ‘Press’ section of a website (See 'Remit: Press releases and PR').
 

Editorial and news content

Content on a website that is not considered to be advertising directly connected to the supply or transfer of goods, services, opportunities or gifts may be considered to be editorial content. This could include some of the articles on a company’s ‘blog’ or ‘news’ pages provided that the content does not so clearly intend to sell something, by including direct calls to action or links to make a purchase for example, that it overcomes that context and can only be viewed as advertising.

News articles on media websites generally fall outside of the scope of the Code unless they are ‘advertorials’ or contain affiliate marketing (See ‘Advertisement Features’ and ‘Remit: Affiliate marketing’).

If the content of an independent news article is reproduced faithfully and in full on a company’s own website, and the source of the article is made clear, this is likely to be considered outside of remit unless the article was ‘advertorial’ to begin with. On the other hand, if the reproduced article has been edited or only favourable extracts have been used, this could potentially be considered within remit.
 

Corporate reports and investor relations

Information about an organisation (including its goods or services) that is clearly addressed to the financial community including shareholders and investors as well as others who might be interested in the company’s stock, financial stability or corporate responsibility, is likely to be considered outside of the remit of the Code.

Much of the content on a corporate-facing website is unlikely to be viewed as targeted at consumers with the intention of affecting a sale, even though it may include claims which, in another context, could be considered advertising.

However, the content could still overcome the context so material that is clearly directed at consumers with the intention of selling something, by including direct links to purchase products or details of promotional offers for example, may nevertheless be considered advertising within the remit of the Code.
 

Customer charters and codes of practice

Actual customer charters and codes of practice, even when accessible from a website, are excluded from the scope of the Code. However, claims made about them could potentially be considered advertising.
 

‘Heritage advertising’

Material that was previously advertising but is not part of the marketer’s current promotional strategy and has been placed in an appropriate context, such as a section of a website called “Advertising History” or “Archive”, could be considered outside of remit.

This exemption is intended to exclude campaigns that were iconic and of particular value and relevance to the brand owner’s website and which played a part in the UK’s social history but which, by today’s standards, may not be considered compliant.

If the ads feature direct links to purchase currently available products they are likely to be considered part of an advertiser’s current promotional strategy and a context such as an “Advertising” section is unlikely to lead the ASA to view the material as ‘heritage advertising’ (American Apparel (UK) Ltd, 4 April 2012).

Ads that have been recently ruled against by the ASA are unlikely to be able to claim exemption as heritage advertising regardless of the context they appear in.

Updated 28 September 2016

 


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