Retail surgery: How will ASA regulations affect Twitter and Facebook?

The ASA’s Advertising Codes of Conduct only apply to what it terms “marketing communications”. Essentially, these are communications for goods, services, opportunities or gifts that primarily set out to sell something. Consequently, they are not communications that are editorial content, press releases or other public relations material.

Content that appears in non-paid-for space such as Facebook and Twitter may fall within the ASA’s extended remit, but only where the content can be considered a marketing communication of a company.

“This means if the retail workforce is providing editorial comment on a company that is then posted onto Facebook or Twitter, the ASA will not be able to adjudicate on a complaint made in relation to that comment,” says Nina Best, an expert in advertising and marketing law at the law firm Browne Jacobson LLP.

However, if the company adopts and incorporates the comment into its own marketing communication by re-posting the comment on its own website or in other non-paid for space online under the company’s control, then the comment may fall within the ASA’s new remit if the ASA deems it to be a communication that is intended to stimulate sales. Of course, the respondent to a complaint at this stage would be the company, not the commenter. 

The ASA has refused to provide a definitive list of circumstances to which it deems its remit will extend. Instead, it says that it will determine whether a communication amounts to a marketing communication on a ‘case-by-case basis’. Best says this  “allows it to exercise its discretion when it receives complaints about communications made in this previously unregulated territory”.