Revolution cover feature: The web gets rules

Regulators have finally recognised that the internet needs policing in order for consumers and brands to thrive online, writes Adam Woods

The web is gradually becoming a safer place to do business
The web is gradually becoming a safer place to do business

When you're as big and abstract as the internet, you lend yourself to frothy analogies. The Wild West has been a favourite for those who sense danger in the internet's vast spaces, where a lawless, frontier spirit allegedly prevails and bad brands do bad things.

Utopia is the other one, its sense derived from Sir Thomas More's fictional Atlantic island, where there would be no private ownership, no unemployment and absolute religious tolerance. In More's vision, everyone would also have had two slaves, but we'll let that pass.

Regulation, or the lack of it, is a central concept in both pictures. The Wild West implicitly needs a few laws and a tough sheriff if it is going to be safe for ordinary, decent people. Utopia is generally supposed to connote a place where everything naturally works just like it should, but, in practice, Sir Thomas riddled the place with rules to keep everyone on the right lines.

So it is with the internet, where, despite a spirit of lawlessness, an online libel is still a libel, a cyber-crime is still a crime and, as of next month, marketers will abide by exactly the same set of ASA (Advertising Standards Authority) rules as they do in every offline medium.

From 1 March, all "marketing communications" on websites will be regulated by the ASA. And that's just the start of a new wave of regulation set to hit the web.

In November, the European Commission announced that 2011 would see the proposal of a new data protection framework, with particular attention paid to social networks and the capture and use of data online.

Meanwhile, brands with intellectual property are playing a part in driving the new regulation regime. After much lobbying from the music and film industries, politicians in Brussels have been locked in talks with Internet Service Providers (ISPs) about setting up a framework to monitor and punish copyright infringement. A public consultation runs until 31 March.

For marketers, the idea that the web is in a process of being tamed and gentrified feels like a heartily positive one. There remain good reasons for the digital industry to beware of over-regulation, but the CAP Code can help brands by providing guidelines for good behaviour.

Instilling confidence

"From a marketer's point of view, we want consumers to have confidence in the internet," says Alex Tait, the Post Office's head of digital sales and marketing, who had an input into the CAP Code discussions as chair of ISBA's digital action group. "When it is enormously mainstream, as it is now, and you have two-thirds of the UK population using this channel and it is absolutely key to their lives, people have to have confidence in it."

Exactly as it does offline, the CAP Code is intended to bind online advertisers and media owners to ensure their marketing communications are responsible and truthful, particularly where there is an invitation to purchase. The offline code contains specific rules covering advertising to children and ads for alcohol, gambling, motoring, health and financial products. The online version will enforce regulation covering all of these sectors.

"I would say, broadly, this is a facet of scale and maturity," says the IPA's head of digital, Nigel Gwilliam. "Really, once digital reaches this level of significance and becomes a mainstay of business communications, then people look for levels of trust, levels of responsibility and levels of good brand manners."

Those who do believe the online CAP Code represents an over-reaction tend to think so not because they fear forced creative compromise, but because they believe consumers usually know what's what where online advertising is concerned.

"The presumption is that people are daft and don't understand what is advertising and what's not, and I think usually people do," says Richard Spalding, chief executive of Diffusion Media Group, whose companies include viral marketing agency The 7th Chamber.

"When people are not being told, and it isn't obvious that something is advertising, that's when it becomes dangerous," he concedes. "But most successful viral campaigns - the Old Spice Guy or the Cadbury's gorilla or the Evian rollerskating babies - those sorts of brands want you to talk about them. They don't want to be covert about it."

Bob Wootton, ISBA director of media and advertising, acknowledges the possibility that stricter regulation, even of a self-imposed variety, may potentially influence the creative material that issues forth from the industry, although in his view, restrictions can have a surprising effect on creativity.

"Some of the most creative advertising we have ever seen has been produced in some of the most heavily circumscribed areas - the prime example being the dog days of tobacco advertising," he says. "Creatives strangely seem to respond to one of two stimuli - either complete freedom or a terribly tight, binding set of rules."

It's a common theme that creative directors dislike regulation and enjoy pushing the boundaries of any existing rules (see box-out). But when you're working for a big brand, it's easy to see why regulations are welcomed - to weed out less scrupulous operators.

"I don't think it is going to have a huge impact on creativity," says Lazar Dzamic, joint planning director at Kitcatt Nohr Alexander Shaw. "It's just applying to digital the rules that have been tried and tested elsewhere for however many decades now. Traditionally, the internet was perceived as being a space that should be free because it started like that. It wasn't even media then - it was just a space that people used in so many different ways. But over time it started being adopted by marketers and commercial organisations, and a space like that needs regulation."


While the freedom and uncontrollable nature of the internet were among the broadest boasts of its earliest proponents, the fact is that a wild internet holds little appeal for marketers. That is why self-censorship of the web for commercial reasons has been commonplace for years.

"Marketers have understood the value of different types of censorship online for a while," says Cameran Harman, UK managing director at internet sales house Ad2One, whose clients include eBay, Ryanair and BAA. "There is a big difference in the prices you can charge against media that is user-generated versus media that is user-generated, but curated by professionals. It's a difference between £1 and £2 CPM and £20 or £30 CPM."

The taming of the internet is constantly advancing and nobody in the marketing world is particularly sorry about it.

There is a big difference, of course, between consumer-conscious self-regulation of advertising and the kind of creeping net censorship that causes such controversy in times of Wikileaks and the Digital Copyright Act.

But there is no doubt there is a fierce appetite in various quarters to tame the web more aggressively still, from Brussels to the US Senate. In a febrile climate, the advertising industry is a popular target, and the extension of its self-regulatory activities suggests it knows as much.

"Advertising has many detractors, so, generally speaking, it is a good idea to maintain a responsible and safe space," says Wootton.

The problem the ad industry was contemplating before the voluntary extension of the CAP Code, Wootton adds, was that advertising's naysayers saw digital as a chink in the armour, which endangered the value of the marketing industry's broader efforts at self-regulation.

"There were people outside the industry who felt digital was a Wild West space with all kinds of crazy things going on and they wanted it shut down with all the rest of advertising," he says. "This is just bringing the web in line with other media and I don't think that is a bad thing. It gives consumers confidence and pre-empts much harsher directions coming in which would make marketing much more difficult."

Self-regulation, as applied right across the media, is a desirable approach to keeping external regulation at bay, but that doesn't mean third-party regulation could never be a threat to marketing freedom. In the coming years, the development of advertising will depend on responsible behaviour in some exceptionally grey areas, and many of the industry's pet projects could stand in severe danger of regulatory interference.

Privacy and other issues

On 4 November, the European Commission announced that 2011 would see the proposal of a new data protection framework, with particular attention paid to social networks and the capture and use of data online.

"A lot of people have talked about online being a blind spot in terms of regulation, and that has manifested itself a little bit in social media," says the Post Office's Tait. "Privacy is going to be the issue of the decade, and it will only get bigger."

Likewise, behavioural advertising and location targeting - all good technological fun in their development stages - are sure to be in regulators' crosshairs as their possible negative implications gradually dawn. A year ago, ISBA's Digital Action Group, in the company of the IAB, began work on a self-regulatory framework for the former in response to the EU ePrivacy Directive, which comes into force in May. "Continually, there is a possibility of regulation and it is something the industry needs to get on the front foot of," says Tait. "It needs to anticipate what these issues are before regulators do. We have to get our shop in order to stave off over-regulation."

From the perspective of some, the advertising business is right to be conscious of external disapproval. The Open Rights Group (ORG), which campaigns on digital rights and civil liberty issues, is particularly beady about the suggestion of special exceptions being made for the convenience of particular industries.

The notion of ushering behavioural advertising into common practice without proper debates and safeguards is one that strikes ORG executive director Jim Killock as unacceptable. "Marketing falls under the same regulations as everything else does," he says. "Where advertisers are claiming a special case is in behavioural advertising, where they are trying to say, 'normally this kind of profiling would require special consent, but we want legal loopholes that allow us to do that without seeking explicit consent'."

Besides privacy, the role of advertising in other mounting social evils will inevitably come under heavy attack once again and, in this respect, digital is the least likely media space to be given any kind of exemption. "What is going to be important is the restrictions governments put on advertisers and their agencies around critical issues, such as obesity, drinking and violence," says Dzamic. "Any product, service and advertising that is going to be perceived as fuelling these things, particularly where they concern kids, is going to come under real scrutiny."

Marketers need to appear at least ostensibly committed to playing a responsible role in that debate, and the UK industry has a strong record in doing so. For some, the maturity of the digital space and its commitment to accommodating outside interests is only the latest sign of the demise of its relevance. US media theorist Douglas Rushkoff fondly remembers pre-internet networks, user-controlled and operating in small clusters around an amateur server, and he proposes that thinking people abandon the internet as it stands and build a new one. "Once the fate of a network - its fairness, rule set, capacity for social or economic reformation - is in the hands of policymakers and the corporations funding them, that network loses its power to effect change," he says. "The fact lawmakers and lobbyists control the future of the net should be enough to turn us elsewhere."

Other unmissable trends, however, indicate just how unlikely a return to wilder internet days really is. As US academic Jonathan Zittrain pointed out in his 2008 book The Future of the Internet and How To Stop It, an internet that began as a shifting thing that invited innovation is one many of us now allow to be mediated for us through closed appliances.

The much beloved family of Apple products, as perhaps the most prominent example, offers a luxury technological playground, but one with a high wall around it and a carefully-policed gateway. There is no Wikileaks app on the iPhone because Apple, having approved an unofficial one in December, ejected it three days later.

In other words, internet users have already happily traded away a degree of internet freedom in exchange for security - from spam, from controversial sites, from extreme views. Regulation, in comparison, has scarcely come into it.

The latest tranche of regulation will change that, but the prevailing sentiment from brands and marketers is that safer is better. While some argue the lawless spirit of the web is gradually being eroded, and with it some spirit, brands are embracing regulation - until it goes too far.

ADS THAT SHOCKED THE WEB - Not all of which would nesessarily be banned under the CAP code

Agent Provocateur

The fame of Kylie's bucking bronco routine is such that, 10 years from its debut in cinemas, Google Instant guesses what you're looking for by the time you've typed 'agent pr ... '. In 2009, it was voted the greatest viral after more than 350 million hits, although the tiny temptress is actually quite smug in it, watching it again now.

Internet Explorer 8
A 2009 Microsoft viral effort for Internet Explorer 8 sought to promote a private browsing feature by highlighting a "syndrome" known as O.M.G.I.G.P. or "Oh My God I'm Gonna Puke". It showed a woman vomiting all over her husband after stumbling across stomach-churning URLs in his internet history. Microsoft pulled the ad after complaints.

Less admirably controversial was No Pressure, Richard Curtis's widely "misunderstood" ad for the 10:10 climate change campaign, in which numerous people, including schoolchildren and David Ginola, were bloodily detonated at the touch of a button for not pledging to cut their carbon emissions by 10%. The gore might have been forgivable if the humour - and Ledley King's acting performance - had been a bit sharper.

Ford SportKa
For the 2004 launch of the SportKa, dubbed "the Ka's evil twin", Ford and O&M brainstormed all sorts of ideas, but one they claimed to have left in mothballs somehow "made its way onto the internet", to general disgust/amusement and widespread publicity. The two short ads in question respectively featured the evil hatchback swatting a bird through the air with its bonnet and decapitating an inquisitive cat with its sunroof.

Not shocking as in "ban this filth!", but capitalising nonetheless on the web's tolerance for rude words, Barnardo's 'Believe In Children' campaign was led with a film called "The Fuck Off story", which featured a boy who told his parents, his foster carers and his social workers to do just that. They all did, except Barnardo's.

Mafia Wars
Demonstrating that the long arm of the ASA reached online well before the CAP Code extension, Facebook took down an ad in 2009 over suggestions it glorified violence. The ad, for Zynga's Mafia Wars game, featured a hooded figure with a knife and carried the tagline: "From street thug to capo. Earn your street cred and be respected." The ASA banned it and Facebook claimed to have taken it down because it breached its own guidelines.

The Last Exorcism
Dropping a saucy webcam video into Chatroulette to promote a new film is a pretty good idea, especially when the film is Lionsgate's 2010 horror pic The Last Exorcism, which quickly turns very nasty. Lionsgate doubled its value from the enterprise by circulating particularly funny viewer reactions.

Dr Pepper
Possibly the best-known social media miscalculation to date came on behalf of Coca-Cola's Dr Pepper brand, when Lean Mean Fighting Machine last year used an opt-in Facebook status takeover to drop a porn-related slogan onto the page of at least one 14-year-old girl. Oops. The brand was forced to re-think it's entire online strategy after the mishap.