23 June 2009

MEF Responds to the CAP/BCAP Code Consultations

Over the last few weeks, we have been working closely with MEF members in the UK drafting a response to the proposed changes to the Code of Advertising Practice (CAP) and Broadcast Code of Advertising Practice (BCAP) in the UK. A cornerstone of the better regulation strategy and implementation is the five principles of good regulation which state that any regulation should be transparent, accountable, proportionate, consistent and targeted.

I am becoming increasingly concerned that the mobile media industry is being subject to a record number of significant reviews. As the CAP/BCAP consultations show, there are clear overlaps in jurisdiction between different regulators covering the same or differing aspects of content and advertising for mobile media services. These overlaps and lack of clarity as to which regulations apply and when, or by which regulator, clearly go against the better regulation principles. This is evidenced by the fact that some proposed changes to the CAP/BCAP Codes seem to clash with the PhonepayPlus Code. Any such ambiguity is likely to cause serious regulatory uncertainty and as a consequence, the regulatory burden on MEF members runs the serious risk of becoming disproportionate. The mobile media industry has already been subject to considerable scrutiny through the PhonepayPlus “Mobile Phone-Paid Services and their Marketing” consultation which imposed prior permission for certain mobile services. Ofcom is currently consulting on its premium rate services scope review, we will have a new regulator for all audiovisual services soon and PhonepayPlus is planning to consult on its Code in September. All this in a short 12 month period. While I’m not saying that the industry does not need to be regulated, regulation should not be an impediment to the innovative services that consumers find attractive.

The CAP/BCAP reviews are very thorough and I certainly would like to commend and congratulate them for the time and effort they took to look at their respective Codes. However, there is still much work to be done. Ofcom, PhonepayPlus, the Office of the Information Commissioner, CAP/BCAP/ASA, the DCMS and other bodies with a regulatory function really need to meet to discuss the clear demarcation of their jurisdictions and the applications of their Codes. In terms of our response to the CAP/BCAP Codes, we propose:

  • That the Codes can be more goal based. They currently contain a long list of provisions that highlight misleading practices that can be incorporated in supplementary guidance to the Codes rather than being in the Codes themselves.
  • A clarification in the ambiguity caused by certain proposed provisions – particularly the difference of emphasis in the wording of the children’s provisions set out in the CAP/BCAP Codes. In fact the CAP and BCAP Code implement the same legislation in different ways in the Code.
  • Clear guidance should be provided to cover those situations where there is regulatory overlap. If the complaint relates to premium rate services, then PhonepayPlus should investigate, if it relates purely to advertising, then the ASA should investigate and if it is an issue of data protection and privacy, then the information commissioner should take the lead.

To get involved with MEF and our regulatory work, please contact Suhail for more information. To view our responses, please go to the following links:





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