May 10, 2021
After consultation CAP updated the wording in the Scope of the CAP Code in relation to jurisdictional matters, with the changes taking effect from February 2021. CAP has now published a bitesize guide on what’s in and what’s out to help explain what the Code applies to.
The Code does not apply to ads on websites, apps and cross-border platforms unless they meet at least one of the following criteria:
- non-paid-for marketing communications from or by marketers with a UK registered company address;
- marketing communications appearing on websites with a “.uk” top-level domain; and/or
- paid-for marketing communications from or by marketers targeting people in the UK.
Accordingly, marketers’ own websites, social media pages and app content based in the UK will fall within the scope of the CAP Code. The reference to “.uk” top-level domain applies to all marketers, regardless of where they are based. If a website ends with .co.uk, the CAP Code will apply.
In terms of “targeting”, CAP explains that paid-for ads will fall within the remit of the Code if they target UK consumers. The list of criteria that might indicate targeting is not exhaustive, but some things that might be taken into account include:
- where it has appeared: if an ad has appeared on a website based in the UK then it is likely that it is targeting a UK audience;
- by the way the ad is served: if an ad has been targeted to someone based on their location, that is likely to be considered targeting a UK audience; and
- the content: if there is something about the content that targets UK consumers, that will be likely to be considered targeting a UK audience; this could take the form of using prices in Pounds Sterling or referring to a product or service that’s only available in the UK.
The following are not covered by the Code:
- non-paid-for marketing communications on websites, apps and cross-border platforms from or by marketers without a UK registered company address; and
- paid-for marketing communications on websites, apps and cross-border platforms not targeted at UK consumers.
The ASA is a member of the European Advertising Standards Alliance (EASA), which co-ordinates cross-border complaints between self-regulatory organisations across most members of the European Union and many non-European countries. If an ad falls outside the scope of the CAP Code, the ASA may be able to refer it via this process if there is an equivalent organisation in that country. If this is not possible (either because a self-regulatory organisation doesn’t exist or is not part of EASA), then the ASA will consider taking what action it can if the ad specifically targets UK consumers.
Other factors that would increase the likelihood of a marketing communication being regarded as targeting UK consumers include:
- prices being given in Sterling;
- consumers being provided with a UK telephone number or geographic address for support;
- consumers being invited to visit physical premises in the UK; and
- the marketer being subject to regulation under UK regimes (for example, being subject to regulation by the Gambling Commission).
As for direct marketing, CAP explains that the Code will apply to any direct marketing communications (emails, mailings etc) sent from marketers within the UK. If sent from abroad, they will fall within the jurisdiction of the relevant organisation in that country. In instances where a referral via EASA isn’t possible, the ASA will take what action it can. To access the advice note on CAP’s website, click here.