ASA revises its complaints handling procedures

by DLA Piper
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The Advertising Standards Authority ("ASA") has recently published revised procedures for its handling of complaints regarding broadcast and non-broadcast advertisements in the UK. The changes are intended to increase transparency, consistency and accountability of complaints processing.

Whilst largely procedural, the changes represent a welcome improvement to the ASA processes. In particular, simplification of the factors relevant to requesting an informal investigation, greater certainty of deadlines, and the rules around vexatious complaints, will be welcomed by marketers.

The Key Changes

The main procedural changes, and the practical impact on marketers and complainants, are as follows.

  1. Repetitive, excessive and vexatious complaints - The ASA has formally incorporated a right to refuse such complaints. Any restrictions against particular complainants will be applied proportionately, will be time limited and will be communicated in advance to the complainants. For advertisers this will be a welcome revision, reducing the need to expend resources addressing unfounded complaints.
  2. Complaints about online ads - Complainants must now include screen shots of the web pages which are the subject of the complaint, or a cached copy of the website, or a note of where and when it appeared. This encourages more responsible complaints and saves ASA resources.
  3. ATVOD - A new category of non-broadcast ad complaints are now recognised by the complaints process - ads which appear on The Authority for Television On Demand notified services.
  4. Confidentiality - Building on the existing confidentiality rules, the ASA has inserted an obligation that all parties to an investigation must keep confidential all material submitted and correspondence entered into during the course of the investigation, which is not already in the public domain. This addition should provide some comfort to advertisers who submit commercially sensitive material to the ASA during the evidence process, albeit that it will be very difficult to police. 
  5. Abuse of Process - Once a complaint has been made or investigation commenced, parties should not take steps which risk compromising the ASA reaching a fair decision, or which otherwise constitute an abuse of process. This new requirement seeks to increase fairness. However, the vigour with which it will be enforced is yet to be seen.
  6. Informal investigations factors simplified - The ASA already accepts the resolution of some complaints through "informal investigations", but has simplified the factors taken into account when offering/agreeing such resolution. In particular, the ASA will consider whether an apparent breach has since been remedied, the seriousness of the complaint, presence/ absence of a pattern of non-compliance, or whether there is a pressing need to investigate formally (cited examples include a need to establish a policy on the particular issue or a need to form a view in order to inform CAP Copy Advice). The simplification of the factors will assist advertisers seeking to persuade the ASA of the appropriateness of informal resolution, which tends to be a far more preferable option.
  7. Formal investigation procedural changes - Some aim to speed up the complaints process, others focus on ensuring that investigations are carried out fairly and proportionately. In particular, the ASA has reduced the time period for advertisers to respond to a standard complaint from 10 to 7 working days. Where studies are used by marketers to substantiate their claims, it will now usually be necessary to provide the full document rather than just an abstract. Other parties involved with the ad (such as the media publisher) may be sent the complaint and invited to provide input to the formal investigation. In exceptional circumstances, advertisers may also now be allowed to provide a 1000-word submission to be placed directly before Council (such submission must relate only to the information already provided in the course of the investigation).
  8. Independent review of an ASA adjudication - As before, advertisers can request an independent review of a Council decision, and publication of the relevant adjudication will not usually be delayed pending the outcome of the review, save in exceptional circumstances (on the authorisation of the ASA Chief Executive). However, the new procedures have formalised the process for requesting delayed publication, by imposing a fixed deadline for making such requests, of 10am on the Friday before the notified publication date.

Likely Impact

Whilst largely procedural, the changes represent a welcome improvement to the ASA processes. In particular, simplification of the factors relevant to requesting an informal investigation, greater certainty of deadlines, and the rules around vexatious complaints, will be welcomed by marketers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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