The expansion of the ASA’s Cap Code came into effect yesterday, and the new rules cover not only paid advertising, but marketing messages on brands’ own websites as well as communications on social media sites. 

The new code does raise a number of potential questions for brands and marketers, so I’ve been asking a number of industry experts for their views on the changes. 

Grey areas in the code

The extension of the Cap Code brings with it a number of potential grey areas. Many of the issues have been outlined by Tia on the eModeration blog, but here are some potential areas of contention: 

  • Where does marketing stop and PR and customer engagement begin? 
  • Will the new rules cover personal accounts on social media sites? 
  • When is user generated content under a brand’s control? 
  • How to judge whether a Tweet will cause offence. 
  • How much information needs to be provided within a tweet to ensure that followers are not being misled? Is 140 characters enough?
  • Objectivity vs subjectivity. For example, a brand couldn’t retweet a misleading statement by a customer, but what about an opinion about a product that others may disagree with? 

The experts’ view

Do you see this as a positive move by the ASA? Was there a real need for this?

Henry Elliss, Tamar:

The move in to governing websites and broader online promotions is of course a good thing, I’m amazed it’s taken so long to be honest. I think that for consumers, knowing activity that happens on brand’s own websites will now be covered is very reassuring.

Richard Anson, Reevoo: 

Online communications have become a huge part of marketing and as such there is a real need for the ASA to broaden its remit to include these areas. We welcome the guidelines as they make it very clear that online content must be ‘legal, decent, honest and true’. We believe that this will strengthen consumer confidence in social commerce, which is vital for the continued growth of these emerging channels.

Danny Whatmough, Wildfire PR:

I can see why the ASA has taken this step and, in many ways, it makes total sense. The ethos of transparency, honesty and decency which the code promotes is something the industry should be pushing towards.

However, I do have a number of concerns about the move from a PR and social media standpoint. Firstly, the blurring of the lines between paid and earned/owned media is an interesting one that takes us down a potentially problematic path.

Secondly, I’m not sure the codes really understand the intricacies of social media and engagement and how this differs from something like an advertising campaign or even a marketing website. Lastly, I have my doubts about how this will be enforced and whether it is even possible to manage.

Stephen Waddington, Speed Communications:

Yes. I think you’d struggle to argue that consumer protection was anything but a good thing, and it legitimises social media.

Tia Fisher, eModeration:

Promoting honest advertising can never be a bad thing. But these changes may lead to some confusion if over-stringently applied. The ASA apparently received over 4,500 complaints since 2008 about online marketing. However, during the IAB UK Safe and Social seminar, we were told that few or none of those were about social media. So, to be honest, the need is not entirely clear.

Steve Richards, Yomego:

I think most of what’s been covered by the CAP extension is pretty sensible, and I think it is a positive thing for all of us. It gives clarity to what brands can and can’t do, and makes it clearer to consumers what is brand promotion and what is personal opinion. It takes away any whiff of dark arts, or dodgy practice.

What do you see as the potential issues faced by brands? 

Richard Anson: 

The potential issue faced by brands is how they manage social media and user generated content. The new guidelines imply that everything shown on a brand’s website, including consumer reviews fall under the remit of the ASA.

This means that all content including user generated content and reviews must be ‘legal, decent, honest and true’. Therefore brands must ensure that they have a process in place to make certain that when it comes to reviews and social media content they are actively preventing fake reviews or comments, not censoring or cherry picking what they display and ensuring that all reviews or comments shown are by verified product owners.

This will require a new focus on moderation for social commerce and ensuring that social media content is verified and not fake. There are still e-commerce sites with a manual, ’DIY’ approach to reviews, and there are also platforms that are non-compliant, which could catch some retailers out.

Danny Whatmough: 

Brands would be wise to read the code and the implications in detail as it could have wide ranging consequences for everything from web copy through to tweets and Facebook posts.

Generally the code takes a common sense approach to promoting products and services in a fair and transparent way. But some of the issues around the use of user generated content will need closer attention.

For example, retweeting a message that cannot be justified or backed up will potentially contravene the code. This means that front line employees that have access to social media accounts will need to be properly briefed on the new requirements and implications.

Stephen Waddington:

Public relations and social media professionals have been critical during the six-month consultation process leading up to the extension of the CAP Code of what they believe to be the advertising industry regulator attempting to extend its reach beyond advertising into other disciplines.

The biggest challenge is educating digital marketing professionals about the CAP Code and then how the ASA implements it in practise. Only time will tell.

Steve Richards:

The biggest change for brands is in how they can use UGC. Take the use of Twitter where two issues spring to mind. Technically, if a brand re-tweets a user’s comment that is positive, and that comment turns out not to be factually incorrect, the brand is responsible.

The other issue is that someone tweeting a libellous remark against a brand (or person) could be liable for where that tweet appears beyond their own following. For most brands, the golden rules of social still apply; be open, be honest and get your facts right.

What are the biggest grey areas? The distinction between marketing and PR? 

Henry Elliss:

Twitter will be a very tricky one for them to police in my opinion. Whilst I agree that retweeting a contentious user tweet then puts the brand at risk of promoting that message themselves, it’s hard to know what *other* activities would do the same.

Does replying to it put you in a grey area? Or following a fan who posts tweets that you’re not allowed to tweet yourself? What about #followfriday recommendations: is recommending a contentious fan showing your approval, even if you don’t single out any particular tweet they’ve posted? Very confusing stuff!

Richard Anson: 

The biggest grey area is in what constitutes marketing. For example it’s arguable that reviews generated by customers to help others make a buying decision can be deemed to be ‘marketing’. Further clarification is needed here as at present everything displayed on a brand’s website can be viewed as marketing.

When we look at the growing trend for brands to embed social media and user generated content to build an interactive conversation with their consumers we can see how difficult this area is for brands to control.

Danny Whatmough: 

This is an initiative that has been driven by the advertising industry. While the CIPR has been able to confirm with the ASA that certain online PR disciplines will be exempt, I feel it is often increasingly unclear where the boundaries between a press release and a post on Facebook or a tweet lie.

It is these grey areas that I still think are going to be impossible to properly police or adjudicate and the danger is that it ends up taking regulation to a perverse level. If taken to extremes, the code potentially infringes the freedom of speech of businesses and, while I’m not saying the ASA will be unfair in the way they target infringers, when you go down the heavy regulation route the potential is always there. 

Stephen Waddington:

The distinction between marketing and PR is a potential issue but to be fair on the ASA it has made an effort to clearly outline its position and has worked with the CIPR and the PRCA to tighten-up its remit and clearly communication exclusions from the CAP Code.

Tia Fisher:

UGC and its re-application as a marketing message. Community managers and digital agencies need to be very aware of the potential pitfalls. For example, if you want to put a testimonial onto the site, you need to make sure you have the evidence at hand that it was entirely unsolicited and in all other ways complies with the code.

Be VERY careful around the areas of tobacco, children, alcohol. That great shot of folk in a bar enjoying your beer brand a user sent in? If you’re going to republish it, make sure they all look over 25.

If you want to retweet some compliment about your brand, you’d better check it: is it legal, decent, honest, true? Or if you tweet a promotionmake sure you’ve included all details, or linked to them.

And as the code applies retrospectively to any promotional content still easily accessible, it would be wise to run a site audit …

How do you think the code will affect personal accounts of prominent businessmen such as Lord Sugar? 

Henry Elliss:

Where does the person stop and the “brand” begin? All I know is, last year’s Apprentice candidate Stuart “The Brand” Baggs had better get familiar with the new guidelines…! : )

Stephen Waddington:

That’s a great question. Perhaps this will be one of the first test cases. If any brand makes a statement in social media that it is not “legal, decent and honest” it will presumably need to indicate clearly why and that it is intending to be satirical or humorous.

Tia Fisher:

Such people will have to think about the fact that what they say may travel further than their own immediate network, and that they would be liable for the extent of any libel (etc) according – see the Chris Cairns case. Of course, if any tweets are sponsored, this must be made explicitly clear.

Steve Richards:

For prominent businessmen like Lord Sugar, they’ll just need to have to make sure they have their facts straight before they start firing from the hip.