In the good old days, you’d see a poster at the side of the road, or receive a leaflet through the letterbox, safe in the knowledge that if you had to complain about that ad, for whatever reason, it would be in the ASA’s remit. Then, the internet came and conquered. Suddenly, ads could be pinged to you from anywhere, from Cambodia to Colombia, Tunisia to Taiwan. The ASA’s remit naturally got slightly more complicated.
In this article, we’ll explain the ASA’s remit on cross-border ads – what’s in, what’s out, and where those cross-border complaints go.
What ads are in the ASA’s remit?
The Code doesn’t apply to ads on websites, apps and cross-border platforms unless they meet at least one of the following:
- Non-paid-for marketing communications from or by marketers with a UK registered company address.
- Marketing communications appearing on websites with a “.uk” top-level domain.
- Paid-for marketing communications from or by marketers targeting people in the UK.
So, marketer’s own websites, social media pages and app content for marketers based in the UK will fall within the scope of the CAP Code. The reference to ‘.uk’ top-level domain applies to all marketers, regardless of where they’re based. If your website ends with ‘.co.uk’ (or ‘.org.uk’ etc), the CAP Code will apply.
How would an ad ‘target UK consumers’?
Paid-for ads will fall within the remit of the Code if they target UK consumers. The list of criteria that might indicate this isn’t exhaustive, but some things that we might consider include:
- Where it’s appeared – if an ad has appeared on a website based in the UK, then it’s likely that it’s targeting a UK audience.
- By the way they’re served – has an ad been targeted to someone based on their location?
- The content – is there something about the content that targets UK consumers? This could take the form of using prices in Pounds Sterling or referring to a product or service that’s only available in the UK.
What ads are outside of the ASA’s remit?
- Non-paid-for marketing communications on websites, apps and cross-border platforms from or by marketers without a UK registered company address.
- Paid-for marketing communications on websites, apps and cross-border platforms not targeted at UK consumers.
What happens with complaints about those ads?
The ASA is a member of the European Advertising Standards Alliance (EASA) which co-ordinates cross-border complaints between self-regulatory organisations across most members of the European Union and many non-European countries. If an ad falls outside the scope of the CAP Code, the ASA may be able to refer it via this process if there’s an equivalent organisation in that country.
If the ASA isn’t able to refer a complaint via this process (either because a self-regulatory organisation doesn’t exist or isn’t part of EASA), then it will consider taking what action it can if the ad specifically targets UK consumers.
Other factors that would increase the likelihood of a marketing communication being regarded as targeting UK consumers include:
- Prices being given in Sterling;
- Consumers being provided with a UK telephone number or geographic address for support;
- Consumers being invited to visit physical premises in the UK; and
- The marketer being subject to regulation under UK regimes (for example, being subject to regulation by the Gambling Commission).
What about direct marketing, like emails?
The CAP Code will apply to any direct marketing communications (emails, mailings, text messages etc) sent from marketers within the UK. If sent from abroad, they’ll fall within the jurisdiction of the relevant organisation in that country. In instances where a referral via EASA isn’t possible, the ASA will take what action it can.
Where can I read more?
The Scope of the Code is the original fount of knowledge and lays out the exact remit of the CAP Code, but our Remit: General and Remit: Country of Origin guidance provides more information for marketers on the subject.
And don’t forget that the Copy Advice team is also on hand to answer any questions about jurisdiction. Just don’t ask us to remember our school geography lessons…
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