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Changes to the CAP Code- Google Finds an Ally in the War on Paid Links.

The author

Epiphany Search

It was announced back in September that the UK’s Advertising Standards Authority (ASA) would be extending the reach of its influence as of the 1st March 2011, by introducing changes to its industry rule book, the CAP Code, to cover marketing on websites.

The CAP Code already applies to ads in newspapers, catalogues, posters and other media. Until now though, its digital remit covered only ads in emails and text messages and ads in paid-for space, such as banner and pop-up ads or keyword advertising on search engines.

Full details of the changes to the CAP code can be found here.

Interestingly, this expansion of the ASA’s powers is not only being fully supported by Google but also partly funded by them. Google’s UK managing director, Matt Brittin, has been quoted as saying:

If people have a complaint about a claim made on a website it’s important that it is properly investigated. We support the ASA’s aims of providing consumer protection and are happy to help get this up and running for the benefit of UK consumers and businesses.

So, why would Google be so keen to support this action? I’m sure that they do indeed want to see complaints properly investigated and improved consumer protection but, perhaps more telling, is the fact that this extension to their remit now brings paid text links under the scrutiny of the ASA. Specifically the fact that, in order to be in-line with the CAP guidelines, all paid text links would have to be clearly disclosed as being paid for.

Google have been involved in a long running battle to combat the technique of using paid text links for the purpose of influencing search engine rankings and to date have been mostly unsuccessful, with web sites in competitive sectors across the internet still managing to achieve high rankings through the use of paid links, despite it being in breach of Google’s guidelines. The problem is that deciding whether a link is paid for or natural has proved difficult for Google. So, the introduction of further legislation to reinforce their own guideline of disclosing paid links will certainly gain their support.

But how will the ASA, an organisation with relatively little experience in the online world, be able to succeed where internet giant Google have failed? Well, the initial online reaction to these announcements was that they wouldn’t, that this would be another unenforceable set of rules which would most likely be ignored by webmasters and advertisers alike, a view which I originally shared.

However, last week the ASA announced that it is launching a cross media ad campaign to raise awareness of the fact that its remit is being extended to cover websites, which will include utilising radio, press, outdoor and online media. To me this is a very shrewd move. By targeting a much wider audience than Google traditionally have with their webmaster guidelines, the ASA are making it much more likely that people will firstly see and be aware of these changes and thus more likely to adhere to them or report breaches of them. Realistically, outside of the Search Marketing/ Web-Dev industries how many people even know the Google webmaster guidelines exist, let alone have read and understood them?

In my opinion, webmasters are much more likely to avoid selling text links on their sites if they feel they are potentially breaking the law and not just Google’s guidelines, just as advertising/marketing agencies are less likely to pursue techniques that would in essence leave them liable to be prosecuted such as requesting that paid links are not disclosed.

As I am no expert on the finer points of internet law, I put these questions to someone with the necessary legal expertise. As well as hearing the legal perspective, I was interested to hear the point of view of somebody outside of the SEO industry, a view that is probably more similar to that to the people over at the ASA than those of people working within search marketing.

Emma Atkins, Commercial Litigation & Intellectual Property lawyer at Denison Till Solicitors, comments:

So, what exactly are the legal implications of the new codes and what should we be doing to prepare for the 1st March 2011?

The wording of the extension is wide and is intended to capture any communication that is designed to sell something. The new Code will not only cover advertisements but anything that appears to be in a similar form to an advert or makes easily accessible an ‘invitation to purchase’. An ‘invitation to purchase’ is any ‘commercial communication which indicates characteristics of a product and the price, thereby enabling the consumer to make a purchase. In practice, this means that the new CAP Code will cover web pages, whether advertising and/or selling your own products and services or links to or from somebody else’s online service; importantly, having regard to recent trends, this includes advertiser-controlled pages on social networking sites. If you are a commercial entity with a web presence, unless your communication fit into one of the few available exceptions, it is safe to assume that the new Code applies to you.

So how concerned should you be?

In reality, as has always been the case, provided the communications you make are legal, decent, honest, and truthful and in the ‘spirit of the code’ you are unlikely to be at risk. Moreover, the ASA is a reactive enforcer rarely seeking out problems and preferring to wait until a complaint is made; most instances of minor non-compliance will likely go unnoticed. Nevertheless, it has indicated that it will be making ‘spot checks’, monitoring problem sites and seeking the cooperation of search engines in punishing breaches of the CAP Code. Where a breach is found to have taken place the ASA will in most cases make a simple request for withdrawal of the communication. The ASA also has powers to: > name and shame repeat offenders on the ASA website > place warning advertisements alongside the search results listings of products and brands of non-compliant businesses > force the removal of paid for links/advertisements that link directly to the page hosting the non compliant marketing communications > refer matters to the Office of Fair Trading for action under the Unfair Trading Regulations 2008 or the Business Protection from Misleading Marketing Regulations 2008 This is said to be the most comprehensive and robust approach to the regulation of advertising online anywhere in the world but the reputation of the internet as being notoriously difficult to police will not be greatly affected in my view. Nevertheless, anyone dealing with marketing communications, such as website owners and agents should amend their regulatory compliance procedures to account for the new rules. They should consider: > introducing or amending procedures to ensure regular checking of their web presence > training any employees contributing content on company’s website, facebook, blogs, twitter > reviewing standard agreements to make sure references to relevant codes of practice cover the new CAP Code and other relevant ASA guidance > ensuring agreements with advertisers/agents require compliance with all laws, codes and regulations in all territories at which the communication is targeted The ASA has set up CAP Services, which provides free guidance and training on how to comply with the CAP Code and this can be accessed through their website. Alternatively, Denison Till advise on a full range of commercial matters covering terms of business with customers and suppliers and routes to market as well as more specialist areas such as software development, intellectual property assignment/licensing and all aspects of e-commerce.”

So in conclusion, I do not think for one second that these new regulations are going to bring about the demise of paid link building, in fact far from it. However to simply dismiss these new regulations would be naïve. The ASA seem to be taking a pro-active approach to creating awareness around this subject, at the very least they have put in place a new barrier for people who do wish to use undisclosed paid links, and this will definitely bring a smile to the faces of people over at Google.

To me this reinforces the fact that websites and agencies implementing one dimensional paid link building campaigns are running a very real risk of finding themselves on the wrong side of not only Google, but now the ASA, OFT and perhaps even the law. Now more than ever, successful link building should compromise a variety of techniques and strategies with the main focus on creating good content that offers value to readers and partners, and which is marketed in an ethical manner.