1.1. This submission is provided by the Advertising Standards Authority (ASA), the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) – the ‘ASA system.’
1.2. The ASA is the UK’s independent advertising regulator. We have been administering the non-broadcast Advertising Code (written and maintained by CAP) for 57 years and the broadcast Advertising Code (written and maintained by BCAP) for 15, with our remit further extended in 2011 to include companies’ advertising claims on their own websites and in social media spaces under their control.
1.3. We are responsible for ensuring that advertising is legal, decent, honest and truthful and our work includes undertaking proactive projects and acting on complaints to take action against misleading, harmful or offensive advertisements. We are committed to evidence-based regulation and we continually review new evidence to ensure the rules remain fit-for-purpose.
1.4. In addition to investigating ads, we also provide a wealth of training and advice services (most of which are free) for advertisers, agencies and media to help them understand their responsibilities under the Codes and to ensure that fewer problem ads appear in the first place. CAP and BCAP provided 535,478 pieces of advice and training in 2018.
1.5. The ASA system is providing this written submission in response to the Democracy and Digital Technologies Committee’s Call for Evidence. Our submission focuses on the regulation of political advertising; the regulation of online advertising; and, proposals to create a new online regulator.
2.1. We recognise the Committee’s concerns about the potential impact of digital technologies on democratic processes. We welcome the Committee’s scrutiny of political advertising regulation, and online regulation more widely.
2.2. Political ads are banned from being broadcast on TV under the Communications Act 2003 (instead, parties are given airtime via party political broadcasts, which aren’t classed as advertising). The content and placement of non-broadcast political ads is not currently regulated by any body in the UK. The non-broadcast Advertising Code excludes political advertising through its exemption for “claims in marketing communications, whenever published or distributed, whose principal function is to influence voters in a local, regional, national or international election or referendum.”
2.3. The decision, taken in the late 1990s, fully to exclude such ads was driven by three factors. Firstly, the short, fixed timeframes over which elections run (i.e. the likelihood that complaints subject to ASA investigation would be ruled upon after an election has taken place). Secondly, the 1998 Human Rights Act, which raised concerns about the legality of the ASA restraining the freedom of political speech around democratic elections and referendums. Finally, and most importantly, there was no consensus amongst the main political parties that political advertising should be brought within the scope of our Codes.
2.4. CAP and the ASA Council reviewed their positions on this matter in 2017 and concluded that, as those barriers remain in place, we remain reluctant to change the current position.
2.5. We would consider revisiting the issue if, as a starting point, the main political parties/referendum campaign groups were to agree to follow the Advertising Code and if suitable funding was available. Funding would be important because of the likely cost that would fall on any body regulating political advertising proactively, or quickly enough reactively, to take effective action against political ads before the election or referendum had taken place.
2.6. Another route would be organisations with appropriate expertise coming together to share such a role for the limited formal campaign period of elections/referendums.
2.7. If another organisation was prepared to take up responsibility for regulating such advertising, we would want to share our insights from our long-standing role in regulating other forms of advertising across all media, including our regulation of (non-political) cause-related advertising where freedom of speech is a vital consideration.
2.8. Since 2017, we’ve been a member of a group convened by the Electoral Commission, which includes the organisations named in the committee’s recommendation. Some of the other members include the Committee on Standards in Public Life, UK Statistics Authority and the Equality and Human Rights Commission. Those discussions have helped ensure a shared understanding of each organisation’s respective activity, and helped ensure our activity complements that of other organisations. We’ve also coordinated common lines to use for public and media enquiries to ensure that the public gets clear, consistent information about roles and responsibilities. The group will continue to meet regularly to discuss emerging issues and, if necessary, to take further steps.
3.1. The ASA has regulated paid-for online ads since the emergence of the internet. In 2011, the ASA’s online remit was extended to include companies’ and other organisations’ own advertising claims on their own websites, social media spaces and advergames. We call this ‘website advertising’.
3.2. In 2018, the ASA resolved 14,257 cases (ads subject to action) from 16,059 complaints about online advertising. This amounted to 47.6% of the total number of complaints we resolved last year. The number of online cases resolved by the ASA outnumbered TV cases by almost 3:1 (14,257 v 5,748).
3.3. 90% of the 10,850 ads we ensured were amended or withdrawn in 2018 appeared online, either in whole or in part.
3.4. Of those complains about online advertising, the vast majority (over 13,000) concerned potentially misleading advertising. Under 1,000 of the online complaints were categorised under potential ‘harm or irresponsibility’.
3.5. 78% of the 14,257 online cases were ’website advertising’, and 22% were in other online media, mostly paid-for.
3.6. Age-restricted ads online – including on social media – need to follow the same strict content rules as those in traditional media. They must be prepared in a way that is socially responsible and doesn’t appeal inappropriately to children or other vulnerable people.
3.7. We continually review our rules to ensure they are in the right place and introduce new standards where necessary to keep up with technology.
3.8. In November 2018, we published our strategy for a further strengthening of online ad regulation, which is entitled More Impact Online. It’s right for us to focus on online advertising because businesses increasingly advertise online, people are spending more time online and the pace of change online contributes to public concerns. The strategy prioritises:
4.1. The ASA recognises the current government proposal to create a new regulator for online safety. We ask that any such new organisation organises itself to complement the ASA’s regulation rather than duplicating and/or undermining it.
4.2. The ASA operates a form of “collective regulation” – neither statutory nor purely self-regulatory. We co-regulate broadcast and video-on-demand ads with Ofcom and, in relation to non-broadcast advertising, we work with a range of legal backstops, from Trading Standards and the Gambling Commission, to the Information Commissioner’s Office.
4.3. We are able to secure compliance in over 98% of cases where a breach of the Advertising Codes is identified, without having to refer an advertiser to a legal backstop. Referrals are rare because UK media and platforms agree to act as gatekeepers for the ASA. If we spot a bad ad on YouTube, on Instagram, on a TV channel, in cinemas, on outdoor media or in print media, those organisations and platforms work with us to remove the offending ad quickly.
4.4. Between 2014-2018, we resolved around 71,000 complaint cases and 64,000 own-initiative cases involving allegedly misleading advertising. Of those, around 30,000 resulted in us taking follow-up compliance action of some sort, including threatening referral to the appropriate legal backstop. That compliance action was overwhelmingly successful, resulting in us referring only 68 companies, all to Trading Standards, in those five years. On average, only 14 cases were referred each year, with obvious big savings for Trading Standards and the tax payer.
4.5. As part of that collective regulatory approach, we would of course seek to work with the appointed regulator in an open and constructive manner. We welcome further clarity on how the role of the new regulator will fit with established regulators and enforcement bodies. The ASA has bespoke agreements with other regulators, enforcement agencies and Government departments, which ensure there is an appropriate level of understanding and respect for each other’s duties and responsibilities, and that we do everything we can to maximise protecting people while avoiding unjustified expense or double jeopardy for regulated parties.
4.6. We would invite the new regulator to have regard to the ASA if it were to identify harm arising from the content or placement of online ads that fall under the Advertising Codes. In all but exceptional circumstances, the ASA should undertake the role, as it currently does, of addressing any such identified harm in the first instance. We would want to prioritise drawing up a memorandum of understanding, or the like, with the appointed regulator to cover any potential overlap in regulatory responsibilities in order to reassure stakeholders about the division and co-ordination of any such responsibilities.
Public Affairs Adviser
Advertising Standards Authority
020 7492 2176