Digital Do-somethingism? ASA “vollocks”

Naughty Oreos. BBC Newsround is onto you. The ASA has slammed its weight down on 5 — FIVE! — videos. The consumer is safe. Phew. What a load of vollocks. It demonstrates only one important thing about the ASA and the CAP Code: THEY’RE POINTLESS IN THE DIGITAL AGE.

This is, of course, nothing new. Four years ago I sat on the Internet Advertising Bureau (IAB) Social Media Council and back then both ASA and CAP were very worried about bloggers being paid to blog by brands. Unregulated. Worse still, they were concerned about “influencers” using their “influence” for money. The problem was, everything that the ASA and CAP Code published about the topic was loose, imprecise and nebulous. It still is.

Sitting around the IAB table were a selection of professionals from the UK ad and marketing agency world and as they read the latest guidance, the whole group descended into head scratching, arguments and theoretical debates about what it all meant. And what happened? Four years later Oreos get a slap on the wrist. Meanwhile, the online world has been flooded with paid for content, native ads, vlogs, blogs and Facebook pages pushing stuff.

The problem is the Oreo example highlights a technical consumer issue. I use the word technical because if anyone thinks labelling those videos as adverts will make any difference to their effect, reach, influence or relevance to the audience is misguided. We are exposed to images, words, memes and sounds all day long that affect our behaviour and the choices we make. That’s not an assertion, it’s how our brains work. (I’ve devised a simple test you can use to demonstrate this precise effect — called unconscious bias — here).

The material labelled ‘adverts’ (and the ones that aren’t) don’t have a qualitatively different effect on how they influence our unconscious decision making. The difference is on a conscious level, i.e. the ones we know are adverts are easier to classify as adverts. And that’s about it. We don’t even need to see adverts for them to affect us. We just need to recognise the images and colours of brands, even as blurry background shapes as we walk by, for them to register in our unconscious minds and influence our choices.

To illustrate this point, consider the TV chat show format, something almost entirely designed to market products (books, TV shows, songs etc.) as content. There’s no moral or ethical high ground to be taken. It’s not innocent journalism to interview an actor who *just happens* to be in the UK a week before their new movie opens at the UK box office. It’s marketing. Plain as day. Unlabelled, unfiltered and most importantly, utterly beyond the scope of the regulators.

Another example: Bod Geldof on the X-Factor, waving his arms around very obviously wearing a Maurice Lacroix wrist watch… a watch he is paid to wear as a brand ambassador, a watch his face appears beside on their adverts. No advert warning label. No reason to put one there. He wasn’t talking about it, he was just wearing it on national TV exposing the product to millions of viewers eyes. How could that be considered advertising?

Another: James Bond in an Aston Martin with an Omega watch and a Sony Smartphone. But those items are referenced by tiny little logos at the end of the movie credits (when everyone has left the cinema) so technically they’re legit. No need to regulate those any further, they won’t influence anyone unfairly. Yawn.

You get the point.

Now of course, the ASA would argue that those examples are a different category of thing. That product placement, chat shows with celebs, celebs with products they brandish on the TV are not explicitly advertising anything. The content itself is not explicit nor intended as a marketing communication. Which is the equivalent of Bill Clinton saying “he did not have sexual relations” because that doesn’t include getting a blow job. To the consumer watching (as I’s sure it was to Hilary Clinton) the fact it’s technically accurate doesn’t mean it won’t influence their reaction.

Do consumers need protection? Yes. Do they get it? Partially. Can regulations deliver it? Some, but not all. Labelling products clearly, that’s doable. Not making outrageous false claims? Yup. Can do that. Kind of. I mean, it’s all relative, you have to read the small print very carefully… like diet pill XLS Medical that can be proven to increase weight loss *in people who are on a low calorie diet and taking exercise* but won’t do jack if you keep eating normally (and so on). But anything more than that gets increasingly debatable… have car adverts banned from promoting the speed of vehicles have reduced the number of people speeding? Jury’s out there.

Worse still, there’s an element of “so what?’ about meeting the ASA requirements anyway. Wonga did. RBS did. Farepack Christmas Hampers did too. It’s a long list, however, the point is simple: meeting ASA standards doesn’t offer much consumer protection when it comes to the broader concept of what “protection” actually means. In terms of harm, be it financial, emotional or physical, most of the major cases we’ve seen in the courts involve companies whose adverts were perfectly legit. It is, after all, just an advert. Many foodstuffs are full of sugar and fat that make kids obese and cost the NHS £millions in related health problems, however provided their adverts are clearly labelled, the ASA isn’t bothered. That’s barely even useful in the scheme of consumer protection issues. So their role in consumer life is marginal, like the enforcement of their regulations.

Let’s imagine Oreos decide to sponsor some Vloggers, who all say clearly (perhaps with a preroll “sponsored by” or a disclaimer in the credits, or the meta data etc.) they are sponsored by Oreos, wear an Oreo t-shirt and eat the odd cookie whilst vlogging. But they don’t talk about Oreos. They won’t have to label their videos as adverts despite the de facto advertising of Oreos.

Or let’s say a vlogger is given a new gadget and they test it online. Technically, the gift of the gadget (in order to test it) is the same as being paid to mention it — it’s an in-kind contribution made by the brand to the vlogger — that should be labelled as an advert? Even if they say it’s rubbish? After all, if you endlessly test gadgets on a vlog, you’re not advertising them. Or are you?

Or let’s say a journalist tweets a link to a news article that, when you click on it, takes you to a paywall. This happens with The Times journos all the time. That’s an advert isn’t it? After all, the link doesn’t go to the purported content, it goes to a sign-up page for a branded product and doesn’t grant you access to anything without making a payment for a whole bunch of other things you haven’t expressed an interest in. Does the ASA do anything about that? Or the CAP? Well, technically yes, in reality, maybe. Or not.

It’s a grey area.

I hosted an event once where I was paid in crates of free lager. I tweeted thanks and mentioned the brand. Was that an advert? Probably. I am still scott free and unregulated.

The ASA doesn’t know how to approach the nuances of the digital world. Neither does CAP. Neither do I from a regulatory perspective, however, in terms of the psychological effect “the hierarchy of prevalence” if something gets a lot of screen time, it’s going to become a preferential candidate in your unconscious if you are making a decision to buy that category of item. Regardless of whether it’s an advert or not.

Can you enforce ASA standards in the vast, global world of social media or online content publishing by volume or by regulatory jurisdiction? No. It’s practically impossible and the ASA’s reach ends in the UK. And the internet isn’t the UK. Their regulatory framework is overburdened and leaky.

So to recap, the ASA is creating regulations that are unenforceable, failing to address the issue in all but the most obvious executions, failing to protect consumers from unethical businesses because they don’t have a remit beyond advertising and marketing… and missing the basic psychology of human decision making processes at the same time.

What’s the point in that?

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