UK advertising rules change today with crackdown on spam

The new rules are not law. Instead, they are found in the 11th edition of the CAP Code, produced by the UK's Committee of Advertising Practice. The CAP Code sets out the rules administered by the Advertising Standards Authority (ASA), governing the content of UK non-broadcast marketing communications. Although lacking the force of legislation, for reasons explained below, the Code should be followed by all businesses.

The new edition of the CAP Code takes account of, and refers to, emerging new media and has been substantially redrafted to clarify many sections so that marketers have a better idea of the rules they need to follow to ensure that their marketing is legal, decent, honest and truthful.

Explicit consent

The rule that explicit consent is now required for marketing by e-mail or text messages unless marketers are offering similar products to existing customers reflects provisions of the Directive on Privacy and Electronic Communications. This Directive was passed by the EU in 2002, although it does not need to be implemented into the UK until the end of October 2003.

Disclosure

Immediate disclosure is required if e-mails contain direct marketing – in compliance with the E-commerce Regulations of 2002. Also following the provisions of these Regulations, legitimate unsolicited e-mail marketing communications must now be clearly identifiable as such without the need for recipients to open them.

Media covered

The CAP Code covers, amongst other things, on-line banner ads and pop-ups, moving image posters, SMS and marketing e-mails. It does not cover companies' own claims on their web sites.

Arguably, the Code's wording is out of date already. It refers specifically to SMS (short message service) text messages – at a time when photo messaging is already available via MMS (multimedia message service) and widespread adoption of 3G services is anticipated. It seems unlikely, however, that the Code will be interpreted to exclude these more recent technologies.

Following the implementation of distance selling and data protection legislation in the last five years, the rules on distance selling and the use of consumer databases for direct marketing purposes have been updated and expanded. The changes include a requirement that distance selling marketing communications must include a statement telling consumers that they have the right to cancel orders, unless this is inapplicable.

Overhaul of sales promotion rules

The sales promotion rules have been clarified and the layout simplified. The changes include increased protection for the word "free" – so, for example, the Code states that the unavoidable cost of responding to the promotion by e-mail or text message should be clarified.

In force

The new Code, which has been endorsed by the OFT, takes effect on marketing communications produced on or after 4th March 2003. The ASA will consider complaints under the old Codes until 4th June 2003, giving the marketing business three months to make the transition from old to new.

Penalties for non-compliance

Breaking the CAP Code is not a criminal offence. However, the ASA and CAP are not powerless. In the event of a finding that the Code has been not been followed, companies will normally act quickly to make any changes necessary to comply. For the minority that do not, a range of sanctions operate to ensure compliance with the Code.

First, upheld cases of non-compliance often receive extensive adverse media coverage. This not only informs the public that a marketer has misled or caused offence but also acts as a real deterrent to other companies.

Second, it is a prerequisite for membership of the trade and professional associations in CAP to comply with the CAP Code, so publishers and media owners may refuse further space for an advertisement that breaks the Code. CAP sends out an Ad Alert to its members to warn them of those companies that have chosen not to co-operate with the ASA. Advertising space can then be denied until the required changes have been made.

Third, the trade and professional associations in CAP may remove concessions or incentives associated with membership of that association, or withdraw commission paid on placing advertisements. This could significantly increase the costs associated with a campaign to the point of jeopardising it.

Finally, the ASA can refer a marketer, agency or publisher to the Director General of Fair Trading (at the OFT) under the Control of Misleading Advertisements Regulations 1988. The OFT can obtain an order through the courts to prevent advertisers from using the same or similar claims in future marketing communications.

The new CAP code is available in PDF format from:
www.asa.org.uk/the_codes/downloads/Bcasp_11.pdf