The self-regulatory principle – and therein, the ability of advertisers to deflect calls for an unwieldy statutory alternative – is only as robust as its weakest link. And this was a very weak link – so flimsy that unscrupulous malefactors within the industry could, and did, drive a coach and horses through the CAP code. Since 2008, the ASA – which enforces CAP – has received more than 4,500 complaints about online content abuse. To which the lame – but unavoidable – rebuttal has been: that’s not our affair.
No doubt as billed, the new CAP code revisions comprises some of the most ambitiously scoped regulation in the world. The devil, of course, will be in policing the detail. There are at least two areas of concern here.
Punitive sanctions are notoriously more difficult to enforce online than they are with strictly regulated traditional media. The ASA has shrewdly enlisted Google’s help (Google is also supplying seed-corn capital to prime the pump of wider regulatory coverage). Among its options are to remove paid-for search ads linked to persistent offenders and, if necessary, to escalate the pressure by inserting the ASA’s own “name and shame” search ads opposite the offending site. This, of course, does not have the same force as an outright ban.
More subtle is the issue of scrutinising what constitutes code-breaking content and what does not. Nowhere, it seems, in the newly revised code is there a precise definition of “marketing communications”. Possibly for good legal reason. The boundary between self-promotion and “free editorial comment” is often a difficult one to draw. Nevertheless, the penalty in not defining it precisely will be a slow and – for the sometimes unwitting perpetrators – painful and expensive learning curve while case histories are built up. I doubt that the six-month induction period before the new restrictions are fully implemented will be long enough for the industry to get up to speed.
Let’s look at a rather alarming example of the depth of industry ignorance. ASA chairman Chris Smith, taking his cue from David Cameron’s warning about the sanctity of family values, portrays the revised code as having “the protection of children and consumers at its heart.” Coca-Cola recently, and notoriously, fired it digital agency, Lean Mean Fighting Machine, over a Facebook promotion for Dr Pepper that badly miscarried. No doubt the agency thought it was being smart and edgy when it inserted a cryptic reference to hardcore pornographic movie Two Girls One Cup into the copy. But the reference was wholly inappropriate for the 14-year old girl who ended up reading it – and whose mother subsequently blew the whistle on Coke’s irresponsible behaviour. Coke fired the agency and apologised fulsomely. But the chilling thing was Coke clearly had no idea what the reference meant, and no idea what its agency was up to. If an advertiser of this sophistication can make such an elementary blunder, what hope is there for everyone else?
The upshot of these revised regulations will be to promote a host of new hirings. At the ASA, to sift through the prodigious number of case studies generated; and at advertisers and their agencies, to monitor the new boundaries of acceptability.