The Committee of Advertising Practice (CAP) Code does not apply to marketing communications in ‘foreign media’. This exemption is stated in Scope of the Code, definition II.c. This advice explains how to tell if an ad counts as ‘foreign media’ and whether the Advertising Standards Authority (ASA) would regulate it.
Think about the media, not the advertiser
The ‘foreign media’ definition relates to the country where the ad itself is published. It doesn’t relate to the country where the advertiser is based, which may be different from where the ad is published. If the ASA receives a complaint about an influencer ad on social media, their jurisdiction over the ad would depend on the details of the influencer rather than the brand.
In one case, the ASA received a complaint about an ad that appeared in a YouTube pre-roll that automatically played to UK consumers before the start of a video. The ASA considered that ads appearing in this paid-for space were specifically served and targeted to UK consumers by YouTube, and so the pre-roll did not count as foreign media (Fiat Chrysler Automobiles UK Ltd, 24 October 2018). The advertiser’s country of origin, and the status of YouTube as an international ‘.com’ website, were not the deciding factors.
The Cross Border Complaints system
‘Direct marketing communications’ are ads that are delivered directly to particular consumers, rather than passively appearing in ad spaces such as a billboards.
When direct marketing communications are sent to UK consumers but originate outside the UK, they are under the jurisdiction of the relevant authority in the country from which they originate. If that authority is a member of the European Advertising Standards Alliance (EASA) the ASA will generally refer the matter to them through a cross-border referral scheme.
If the ad originates from a country that is not a member of this referral scheme (e.g. the USA or China), the ASA will take what action it can. When the ASA received a complaint about an online ad for a legal training course, the advertisers argued that they were outside the ASA’s jurisdiction because they were based in the USA (Solaw International Ltd t/a QLTS Advantage, 29 April 2020). The ASA noted that the course was directed at lawyers who wanted to qualify as UK-accredited solicitors, some of whom would already work in the UK, and all of whom would need to take part in an oral exam in London. The advertisers were invited to provide web analytics data on how many customers were present in the UK when they purchased their training course, but did not do so. Because of this, the ASA concluded that the ad targeted UK consumers, and proceeded with the investigation because the ad did not originate from a country with a cross-border referral arrangement.
The importance of the URL
The same principles apply to sales promotions and marketing communications on websites that specifically target UK consumers, but which do not have a “.co.uk” address and are not operated by a UK based company.
The ASA is likely to consider that a site specifically targets UK consumers if, for example, prices are given in GBP, or if consumers are invited to contact a UK telephone number or address. By default, marketing communications on “.co.uk” websites are considered to be in ‘UK media’.
Think about the media’s audience
Some publications may be published for an audience in another country (e.g. The New York Times, Le Monde) but can be purchased as imports in the UK. Unless they are specifically re-published as UK editions, these publications would count as foreign media, and ads that appear in them would fall outside the Scope of the Code.
If in-flight magazines on international flights are intended to remain on the plane, ads in those magazines are unlikely to count as UK media. In contrast, ads that appear in magazines on domestic UK flights would be subject to the Code.
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s Advice Online entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
How can we help!
Whether or not something breaches the Code in this way can often be a fine line – marketers who are unsure whether their ads are likely to breach the Code are invited to contact the Copy Advice team.