1 March 2016 marked the 5th Anniversary of the CAP Code’s online remit extension, which brought marketing communications on advertisers’ own websites (and in other non-paid-for space online under their control) within the Scope of the Code. The result of a long and carefully considered project involving a wide cross-section of UK industry, this landmark regulatory development was intended to deliver more comprehensive consumer protection online. As the online world becomes more and more the ASA’s ‘bread and butter’, it seems to be doing just that.

Complaint levels were initially much higher than expected showing clear public demand for the extension, with most related to misleading claims. This continues to be the focus of the majority of complaints and the ASA and CAP have dealt with a number of sector-wide issues online including ticket pricing, letting agents’ fees, complementary therapies and copycat websites. The number of complaints about this material dropped slightly after the initial surge, but they still make up a fairly significant proportion of the ASA’s incoming work.

Despite the extension, not everything online is covered by the CAP Code; aside from jurisdiction and the relevant exclusions in Part II of the Scope of Code (II. q. and II. u. in particular) clause I. h. was carefully worded, and intentionally so. Deciding whether material on your own website, or in other non-paid-for space online under your control, is covered by the Code can be tricky but here are some important aspects of this remit that are useful to bear in mind;

  • It applies to ads or other marketing communications 'directly connected with the supply or transfer of goods, services, opportunities and gifts': this doesn’t mean that it needs to include a price or seek an immediate financial transaction, but it’s useful to consider whether a consumer is likely to have their transactional decisions affected by the material. If so, it’s likely that the content would be considered ‘directly connected’ and therefore within the ASA’s remit (depending on the context).
  • It extends to 'non-paid-for space online under the advertiser's control': this covers, for example, material on advertiser-controlled pages on social networking websites. e.g. Facebook, Twitter, Linkedin, Instagram (See ‘Remit: Social media’)
  • Incorporating user-generated content (UGC) makes you responsible for it: if you take UGC and put it on your own website or social media pages, or actively promote it (e.g. by ‘Liking’, ‘Retweeting’ or sharing the content), it’s likely to fall within the remit of the Code, and you’d be considered responsible for the content.
  • The promotion of causes or ideas is excluded (unless there’s a direct solicitation of donations): this usually applies to charity/pressure-group websites. Only a direct solicitation of donations, rather than merely urging consumers to sign a petition, would bring such content within the Scope of the Code.

Read more practical guidance and examples.

Still unsure whether the CAP Code applies? The Copy Advice team can help.

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