Way back in May 2010, I talked to an audience at SMX London about how the Advertising Standards Authority were expanding its remit to include ALL online marketing, as covered in their UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (AKA The Code).
I tried not to monger fear too much, though, and pointed out that people online would have to know that the ASA were covering online advertising and marketing. See, the ASA are not a police force. They do not find examples of crimes in advertising and then prosecute. People have to complain to the ASA, who will then decide if wrongdoing has indeed occurred. I reasoned that most people wouldn't know that the ASA had extended their remit and that marketers didn't have too much to worry about.
I was wrong.
The ASA have launched a real-world campaign to raise awareness of their extended authority, meaning even your grandma will know that fraudulent or misleading claims can be reported and punished.
Below are the slides from the presentation I gave in May. Give it a read-through, then scroll down for some key takeaways.
ASA restrictions key takeaways
The ASA covers just about all online marketing and advertising.
According to the ASA's Help Note on Advertising Virals, this includes "e-mail, text or other non-broadcast [i.e., not on television or radio] marketing messages that are designed to stimulate significant circulation by recipients to generate commercial or reputational benefit to the advertiser from the consequential publicity." So while this obviously covers viral marketing, they could also consider linkbuilding under this banner, since that includes a commercial benefit (creating a stronger site to attract more traffic and conversions) and a reputational benefit (getting your company's name in front of blog readers, for example).
You have to make your identity and intentions clear
From Section 2.2 of The Code: "unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them."
From Section 2.3: "marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context."
That means no more, "Oh, I just found this content and thought of you, my favourite NBED blogger" type emails, no more infographics about celebrity divorces created by educational loan sites, no more "consumer reviews" of your company done by you.
Being offensive will get you loads of attention, and possibly fines, bad publicity, legal action...
Being offensive is not a strategy many non-spammy companies adopt, but now there's even less reason to try it. After all, I could write something horrible on my blog and get loads of attention (negative attention, but attention nonetheless) with no legal consequences (well, as long as I'm not inciting hatred or violence, or something like that).
But if I create a Facebook ad for Distilled and use a picture of Osama bin Laden to get attention, I could get in a lot of trouble with the ASA.
Incidentally, that was a real Facebook ad I saw around the time I was putting together my presentation. I was so galled at the sheer disrespect and bad taste that I would have reported it, but the new ASA rules hadn't come into effect yet. If I see something like this again, you can bet your sweet hiney I will report it.
You can only use the personal information in your databases for what consumers have agreed to.
You can't gather more information than you need, you can't keep it on file forever, and if you are going to reuse the information for a different purpose, you have to get permission from the people in your database first. You can still send emails with various purposes to your email marketing database because they have agreed to receiving marketing communications, and that's probably covered in your T&Cs, anyway.
You can find out more information on the Advertising Standards Authority's UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing here, and also check out the Help Note on Advertising Virals, which gives a lot of supplemental information.