UK NON-BROADCAST REGULATOR UPHOLDS COMPLAINTS ABOUT EMAIL AND INTERNET ADVERTISING
By Brinsley Dresden, Lewis Silkin Solicitors
September 2, 2003

Two recent adjudications from the UKâs non-broadcast regulator, the Advertising Standards Authority ("ASA"), provide a useful reminder to advertisers that the ASAâs remit extends to Internet advertising.

On August 6, 2003 the ASA published the outcome of its investigation into an allegedly offensive email sent by the retail chain FCUK. The email in question contained the slogan "FCUK safely", together with other explicit messages relating to guns and sex. The ASA accepted the advertiserâs claim that the recipients of the email had explicitly agreed to receive emails from the advertiser and were therefore likely to be familiar with the FCUK brand and related advertising slogans. The ASA had ruled in previous adjudications, however, that the word "FCUK" could only be used in proscribed circumstances designed to avoid unacceptable levels of sexual innuendo. The ASA concluded that the advertiser had not heeded these earlier adjudications and had therefore breached the British Code of Advertising, Sales Promotion and Direct Marketing (the "CAP Code") by causing serious or widespread offence.

On the same date, the ASA adjudicated on an Internet pop-up advertisement for the confectioner Mars, which described a promotion called "Chocollect". The pop-up in question contained the statement "Collect codes for 3,000,000 rewards", together with the phrase "70 wrappers = XBox". The complainant objected that the pop-up implied that consumers who collected 70 wrappers would receive a free XBox. This was not the case. Instead, consumers who collected 70 wrappers could only buy the XBox for a reduced price. The ASA accordingly concluded that the pop-up was misleading.

Why This Matters: Some advertisers remain under the impression that advertising on the Internet escapes regulatory scrutiny, and that they may therefore transmit more controversial executions via a web platform. This is certainly true for advertising that is not in paid-for space, such as TV-style commercials on an advertiserâs own Web site. As is illustrated by the ASAâs adjudications against FCUK and Mars, however, emails and advertisements in paid-for space on British-based Web sites must comply with the CAP Code. If not, the advertiser will not just risk an upheld ASA complaint, but also adverse publicity and press comment.