December 13, 2018

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Increasing the ASA’s Impact in an Evolving World

Earlier this month the ASA announced its new strategy, More Impact Online, which aims to advance its regulation of online advertising over the next five years. The strategy has been developed following consultation with consumers, industry organisations and the government, and recognises the need for the ASA to move forward and adapt to the changing world of advertising, as well as to build trust – with both the public and across the industry – in a system of self-regulation.

The reasoning behind the focus of the strategy is clear: not only were “88% of the 7,099 ads amended or withdrawn in 2017 online (either in whole or in part), but in the first half of 2018 there has been a significant increase in the number of adverts being amended or withdrawn, with 7,232 such rulings between January and June 2018.

The strategy has six key strands: People; Online; Effectiveness; Buy-in; Enforcement and Independence, and the ASA has identified key drivers, strategic decisions, and markers of success for each of these elements.

People, Online & Effectiveness

 The strategy recognises that people generally lack trust in advertisers, and so expect more of regulatory bodies such as the ASA. As a result, one of its strategic decisions is to put all people first – not “just people who complain” – and throughout the whole of strategy, there is a clear theme of protecting the vulnerable, for example by taking a proactive regulatory approach; working towards the regulation of data driven marketing; and becoming more efficient at recognising ‘scams’.

Whilst the strategy acknowledges the need to listen to the public (and indeed to increase diversity at the ASA so as to “reflect and represent the people of the UK”), the ASA also intends to use technology to greater effect – for example artificial intelligence such as machine learning (where statistical data can be used by computer systems to learn and recognise patterns and predict outcomes) will be used to identify what issues the ASA should focus on.

This very much fits with the ASA’s stated desire to position itself as a ‘thought leader’ in online advertising regulation – and the use of technology is just one piece of this. It is also keen to work closely with large online platforms to help encourage awareness, engagement and improve compliance.

The strategy also looks at how the ASA could become more effective: simplifying the process of regulation so as to allow for quick and prioritised responses; and considers how a ‘lighter touch’ may become more appropriate – this might affect not only the way people refer matters to the ASA, but could impact the ASA’s “always do something” principle.

Continuing membership of groups such as the European Advertising Standards Alliance is also recognised as being of key importance to increasing effectiveness, particularly in relation to cross border issues. The ASA was one of the pioneers of the self-regulatory system of advertising compliance, and is again seeking to be at the forefront of regulation in a changing advertising world, leading the way for other territories, both in the EU and globally, who follow a similar model.

Buy-In, Enforcement & Independence

The strategy recognises that some online businesses do not think that the ASA’s role affects them – for example social influencers (although the ASA has recently brought out a guide specifically to deal with such advertising content) or micro businesses who use social media as their primary form of sales.

The ASA sees awareness and engagement as key to increasing buy-in, and working with online platforms, such as Google and Amazon, is a major way to improve both this and effectiveness, alongside the simplification of regulation.

There is also an understanding that there are difficulties with self-regulation, particularly in an online world where people who view themselves as disruptors may see the ASA as part of the system they’re rallying against.

As has always been the case, self-regulation requires the industry to follow the rules, and those who don’t can fall outside the reach of the ASA. The strategy hopes that using technology such as machine learning will allow it to identify non-compliant advertising more efficiently and to recognise fraudulent advertising more effectively – so that it can be referred to organisations such as Trading Standards or the Competition & Markets Authority (CMA), which can enforce legislation against such advertisers, and where the sanctions have a greater ‘bite’ (including the possibility of fines or criminal liability).

There is also acknowledgement that there is an increasing move towards legislation in the area, and the ASA recognises that it needs to be open minded towards change, whilst maintaining its independence and making evidence-based decisions.

Comment

It is clear that the ASA is aware of its need to adapt in the face of a changing advertising landscape, and is looking towards the future, building on its overriding purpose and its 2014-2018 strategy ‘More Impact More Proactive’.

The strategy recognises the difficulties in policing online advertising, and is seeking to put the ASA ahead of potential developments in the area, recognising the need for them to work with the industry as well as regulatory bodies such as the Information Commissioner’s Office and the CMA.

It will be interesting to see how the strategy will be applied, and to what extent online advertisers will be willing to engage with the ASA’s self-regulatory approach, or whether legislation will play a greater role.

© Copyright 2018 Squire Patton Boggs (US) LLP

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About this Author

Carlton Daniel, intellectual property and technology lawyer, London, Squire Patton Boggs
Partner

Carlton Daniel is a partner in our Intellectual Property & Technology team based in our London office. His practice incorporates the full range of specialist advice in the advertising, marketing and media sectors, and he handles both contentious and non-contentious matters. His practice ranges from advising on intellectual property rights (including trade marks, designs, copyright and confidential information) to commercial contracts, licensing, brand endorsement, sponsorship, product placement, privacy, defamation, confidentiality, data compliance and advertising...

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