Part A – General Complaints Procedure
How to make a complaint
1. The ASAI accepts complaints from any person or body who considers that a marketing communication may be in breach of the Code. The ASAI may also investigate issues identified through its monitoring programme. A complaint should normally be in writing and should set out in a reasonable amount of detail the grounds of the complaint. To assist in both the processing and speedy resolution of complaints it is essential to:
- Write to ASAI (or use the on-line complaints form) with your full name and postal address, setting out in a reasonable amount of detail the grounds for the complaint.
- Include a copy of the marketing communication if possible, or the particulars of the marketing communication, including dates when seen or heard and the media involved.
- Give the name of the product and, in the case of a sales promotion or direct mail activity, the promoter and copies of any labels, leaflets or entry forms involved.
- State clearly at the outset, in the complaint form or written complaint, if a party making a complaint is a competitor of the advertiser/promoter or other entity involved in the marketing communication complained of.
2. Complaints are investigated free of charge. To the extent permitted by law, the identity of an individual consumer complainant remains confidential unless a commercial or other interest is involved in making a complaint. Complainants may be asked to confirm that they have no such interest.
Complaints by Competitors
3. The ASAI is not an arbitration service for disputes between commercially interested parties. These disputes are best resolved by direct discussions between the parties or through their appropriate trade associations.
4. An intra-industry complaint may be investigated by the ASAI where the interests of consumers are involved and, subject to the other provisions of the Code, a decision by the ASAI whether or not to investigate a complaint in such circumstances is a matter entirely within its discretion. In cases where the ASAI does exercise its discretion to decide to investigate, complainants may be required to substantiate their complaints. The identity of the complainant is revealed to the advertiser or promoter and both parties are named in the published Case Report. The ASAI has the option of issuing a statement rather than a formal decision where this is appropriate.
5. Where in the course of an investigation of an intra-industry complaint the ASAI decides that it is necessary for it to obtain independent expert opinion, the complainant shall be liable for the cost/fees involved and will be required to discharge same before the investigation can continue. For the avoidance of doubt, if the complainant does not pay such costs/fees, the investigation will be terminated and the parties informed.
How Complaints Are Resolved by the ASAI
6. The complaint is evaluated initially by the ASAI Executive to determine whether it comes within the terms of reference of the Code and whether there is a prima facie case for investigation.
7. Where a complaint falls outside the terms of reference of the ASAI, for example, because it does not relate to the content of a marketing communication, or where there is no apparent case for investigation, the complaint will not be pursued and the reason will be explained to the complainant. Where possible, the ASAI will help the complainant to contact the most appropriate source of assistance.
8. The ASAI does not wish to unnecessarily duplicate the work of other regulatory bodies. Where it would be more appropriate for a complaint to be investigated or dealt with by another body, the ASAI will endeavour to provide relevant information or will endeavour to direct the complainant to the most appropriate body.
9. The Code does not prejudice consumers’ or advertisers’ rights under law. Complaints will normally not be pursued if:
(a) The same issue in the complaint, or the same subject matter of the complaint, involve matters that have been resolved in the Courts.
(b) Any party to a complaint, or a third party, has initiated legal action with a view to commencing, or has commenced, litigation or another alternative dispute resolution process which relates to a complaint, or the subject matter of a complaint.
10. The decision whether or not to pursue a complaint is a matter at the sole discretion of the ASAI.
11. Where the Executive determines that there is a prima facie case for investigation, an investigation is commenced and the advertiser or promoter (or the advertising/promotional marketing agency involved) is informed of the complaint and invited to comment on it in relation to the Code. They are required to respond, and to submit substantiation where necessary, within such period as the Executive may request, normally within ten days.
12. On receiving the response, the Executive, where it considers that circumstances warrant it, prepares a summary of the case. This will include any facts or advice that the Executive has gathered. It will include the Executive’s Recommendation to the Complaints Committee in relation to what the Committee’s decision might be on the marketing communication’s compliance with the Code and whether the complaint should be upheld. It may also recommend other courses of action to the Committee.
13. There may be circumstances where it will not be possible for the ASAI to reach a conclusion; for example, where the ASAI cannot complete a report or adjudication without commenting negatively on a third party that is not the subject of the complaint.
14. The ASAI has the option of issuing a statement rather than a formal Decision, where this is appropriate, and the option to do so is at the sole discretion of the Complaints Committee.
15. A marketing communication may be found to be in breach of the Code if the advertiser/promoter fails to respond or unreasonably delays responding to the ASAI. Likewise, advertisers/promoters may be found to have contravened the Code if they do not respond, or unreasonably delay their response, to the ASAI.
16. The complainant and the advertiser/promoter or agency are provided with a copy of the Executive’s Recommendation and are given an opportunity to express any further views on the matter at that stage within a period which the Executive may specify, before referral to the Complaints Committee.
17. In some cases, particularly those involving extensive or complex data, the number of steps involved may be extended before a draft Case Report is submitted to the Committee for a decision.
18. The case, including any views received on the Recommendation, is then submitted by the Executive to the independent Complaints Committee, which decides whether or not the Code rules have been contravened.
19. Details of the case, including the name of the advertiser/promoter and agency and the Complaints Committee’s conclusion, but not the name of a consumer complainant, are set out in a Case Report which, at the discretion of the Committee, is released to media for publication and posted on the ASAI website www.asai.ie.
20. A marketing communication which has contravened the rules of the Code is required to be amended or withdrawn. In the case of a sales promotion, the promoter may be requested to make the necessary changes to the way the promotion is communicated or conducted and, where appropriate, may also be asked to recompense any consumers who have been adversely affected.
21. Notwithstanding the above, the investigation procedure and the consideration by the Complaints Committee may be accelerated or otherwise varied where circumstances warrant. If a case is considered by the Executive, in its absolute discretion, to be particularly grave, the Executive may request interim action by the advertiser/promoter or agency, including the immediate amendment or withdrawal of a marketing communication or promotion pending completion of the investigation and adjudication by the Complaints Committee.
22. Complaints about marketing communications that appeared in foreign media do not come within the remit of the Code. The ASAI is, however, a member of the European Advertising Standards Alliance (EASA). EASA supervises the operation of the Cross-Border Complaints System. Under this system, a complaint received by the ASAI or other national advertising self-regulatory body about a marketing communication that was published/ broadcast in another member country is referred to the appropriate national self-regulatory body for consideration under their Code. This ensures that a consumer can have redress against misleading or offensive advertising originating anywhere in Europe.
Enforcement and Sanctions
23. Publication of the Case Reports of the Complaints Committee, including names of advertisers, promoters and agencies involved, is an important element of the self-regulatory system. A marketing communication which breaks the rules must be withdrawn or amended and the media will refuse to publish a marketing communication which fails to conform to Code requirements.
24. A Member who does not accept ASAI decisions may be disciplined by the Board and may be subject to penalties, including fines and/or suspension of membership.
Compulsory Copy Advice
25. The ASAI Board may require advertisers whose marketing communications persistently and/or gravely breach the Code to have some or all of their proposed marketing communications subjected to Copy Advice until the ASAI is satisfied that future communications are likely to comply with the Code.
26. In particular, if an advertiser seems to have deliberately flouted the Code with the intention of generating complaints, PR and subsequent notoriety, the ASAI Board can request the advertiser and the media to submit for a stated period any of the advertiser’s proposed marketing communications to check their compliance with the Code.
27. In exceptional circumstances, the Complaints Committee can be asked to reconsider its Decisions. Reviews of Decisions will be conducted on the basis of, and in accordance with, the principles, structures and procedures set out in Appendix IV. Requests for review must be submitted within 21 days of issue of the adjudication using the form provided for that purpose. The Decision of the Complaints Committee stands while the matter is being reviewed.
Part B – OBA Complaints Procedure
1. Only complaints which are in writing, and set out on the dedicated OBA Complaints Form available on the ASAI website will be accepted and processed.
2. The ASAI Executive will initially check to ensure that they have received sufficient information to identify the parties involved as well as any other information considered necessary for an assessment of the complaint. Where they have not, the Executive will contact the complainant setting out the additional information required, and explain that without it they will be unable to proceed with the complaint.
3. The Executive will also explain, that if, in the future, the complainant sees another example of OBA that they wish to complain about, what steps they might take (e.g. screenshot the page, etc) in order to capture the information that will permit the ASAI to assess the complaint and where necessary initiate an investigation.
4. Where, in the opinion of the Executive, sufficient information has been provided setting out the complaint, the Executive will initially send a copy of the complaint and attachments to the relevant OBA Third Party. A response will be requested within ten calendar days.
5. The OBA Third Party can:
- bring themselves into compliance; or
- demonstrate to the satisfaction of the ASAI Executive that there is not a prima facie case for investigation.
6. In such cases, the complainant will be informed and the complaint closed. The complaint will be recorded as ‘Informally Resolved’.
7. If the OBA Third Party does not respond to the Executive or the Executive, acting in its sole discretion, considers there is a prima facie case for investigation, the complaint will be escalated to the Formal Resolution procedure.
8. A formal investigation will be conducted in accordance with the general procedures for resolving complaints set out at Appendix I, Part A, and references to ‘advertiser’ will, for the purposes of Appendix I, Part B, be taken as referring to ‘OBA Third Party’.
9. In the event of a conflict arising between the general complaints procedures at Appendix I, Part A and these OBA specific procedures, in dealing with OBA complaints these procedures will take precedence.
Enforcement and Sanctions
Publication – ‘Name and shame’
10. In accordance with Appendix I, Part A, Clause 19 following a decision of the Complaints Committee details of the case including the name of the OBA Third Party and the Complaints Committee’s conclusion, but not the name of a consumer complainant are set out in a Case Report which is, at the discretion of the Committee, released to media for publication and posted on the ASAI website www.asai.ie.
11. If an OBA Third Party demonstrates grave, deliberate and / or persistent non-compliance with the Code it may be subject to some or all of the sanctions listed below. (Non-exhaustive examples of when these sanctions might be triggered are given in the FAQs on the ASAI website www.asai.ie.)
12. In this regard, the ASAI Complaints Committee may recommend to the Board of the ASAI that specific additional sanction or sanctions be applied.
13. In such an event, the ASAI Executive will advise the parties to the complaint of the Complaints Committee’s recommendation and invite submissions from them before the matter is submitted to the Board for consideration. The Complaints Committee decision and recommendation will not be published while the matter is being considered by the Board.
14. The Board will consider the Committee’s recommendation taking account of all factors that they consider relevant as well as any submissions received. The Board acting in its sole discretion will decide whether to apply the additional sanction/sanctions recommended by the Complaints Committee.
15. In cases where the Board considers that additional sanction/sanctions should be applied, they will instruct the ASAI Executive who will advise the parties of the Board’s decision.
16. The Case Report will then be published and will include the referral to the Board by the Complaints Committee and the Board’s decision.
Removal of the European Interactive Digital Advertising Alliance (EDAA) ‘Trust Seal’
17. The Board may following a recommendation of the Complaints Committee, decide to apply the additional sanction of contacting the EDAA requesting that the EDAA arrange for the removal of the EDAA ‘Trust Seal’ of an OBA Third Party.
18. In this regard, once the ASAI has informed the EDAA of the request for the application of the sanction, the EDAA will, within two business days, inform the independent certification providers (ICP) to remove the ‘Trust Seal’ with immediate effect. This will be a mandatory action and, as such, neither the EDAA nor ICP can refuse, at this stage, to comply with the ASAI decision and request.
Withdrawal of OBA Icon
19. The Board may following a recommendation of the Complaints Committee, decide to apply the additional sanction of contacting the EDAA requesting that the EDAA arrange for the withdrawal of the OBA Icon of an OBA Third Party.
20. In this regard, once the ASAI has informed the EDAA of the request for the application of the sanction, the EDAA will withdraw the OBA Third Party’s right to use the OBA Icon thus terminating the licensing agreement.
Referral to Relevant Regulator
21. The Board may following a recommendation of the Complaints Committee, decide to apply the additional sanction of referring an OBA Third Party to the relevant regulator (in this case the Office of the Data Protection Commissioner). This sanction will only be applied in cases where the Board, acting in its sole discretion, decides that an OBA Third Party has demonstrated deliberately obstinate and defiant non-compliance with the Code, its OBA rules and adjudications of the Complaints Committee, including non-cooperation with the ASAI’s complaints handling process.