How to preserve a competitor's advertising claim before you challenge it

A competitor's website says their product is "twice as fast" as yours, or "the cheapest in the UK", or shows a comparison table that leaves out the thing you do better. You think it is misleading and you want it changed.

In the UK, the usual first step is a letter to the competitor. That letter is also a warning. Once they have read it, they can quietly amend the page, and the version you objected to may never be seen again. This article explains why the order matters, what to capture, and how to do it before anyone knows you are looking.

Why you capture before you write

The Advertising Standards Authority (ASA) runs the UK's system for complaints about advertising. Since 1 March 2011 that has included marketing on a company's own website. A business complaining about a competitor cannot go straight to the ASA. Its guide to inter-party resolution says complainants "must first have attempted in good faith to resolve the issue directly with their competitor". The competitor should give a substantive response within five working days of receiving your complaint, and you must be able to show they received it: the guide suggests an email read receipt, a phone call or registered post.

Two later requirements in the same guide decide what you need to keep:

• You "should provide the same version of the ad or ads provided to your competitor" during that first exchange.
• "Screenshots of webpages must display the entire page and include the URL."

Put those together. The ASA wants the version you showed the competitor, in full, with its address. The competitor has at least five working days' notice before the ASA hears about it. If you did not record the page completely before you wrote, you may be left with a partial screenshot of something that no longer exists.

The guide also asks you to confirm that you are not taking legal action on the same point, because the ASA does not knowingly investigate complaints that are or will be before a court. Decide early which route you are on. The capture is the same either way.

What the rules ask of the claim

Knowing whose burden is whose tells you what to record.

Under rule 3.7 of the CAP Code, which the ASA applies to non-broadcast advertising, "marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective", and "the ASA may regard claims as misleading in the absence of adequate substantiation". Proving the claim is the advertiser's job. Rules 3.33 to 3.35 add conditions for comparisons with an identifiable competitor: they must compare products meeting the same needs, and "objectively compare one or more material, relevant, verifiable and representative feature" of them.

The same test appears in law. In the UK, regulation 4 of the Business Protection from Misleading Marketing Regulations 2008 permits comparative advertising only when, among other conditions, "it objectively compares one or more material, relevant, verifiable and representative features" of the products. In the EU, Article 4(c) of Directive 2006/114/EC on misleading and comparative advertising sets the same condition, and Article 7 lets courts and authorities require the advertiser to furnish evidence of the accuracy of factual claims, "in a short period of time" for comparative advertising, and treat the claims as inaccurate if it is not furnished.

So you do not have to prove the claim false. You do have to fix exactly what was claimed, in what words, with what qualifications, and on what date. The ASA guide is blunt that "simply stating that a claim cannot be substantiated is insufficient" without clear reasons. Your reasons will rest on the precise wording, so you need the precise wording.

What to capture

A claim is rarely one sentence on one page. Capture everything a reader would rely on to understand it:

• The page that makes the claim, in full: headline, body, footnotes and any small print at the bottom.
• Every page the claim points to for its qualification: a "terms apply" link, a methodology page, a footnote that opens a separate document. If the claim is "fastest in independent tests", the page describing the tests is part of the claim.
• The landing page of any paid advert that leads to the claim, at the address the advert sent you to.
• Your own comparable page at the same time. If they compare their price or feature with yours, the comparison is judged against what was true then. Record your own page on the same day, so you can show what they were comparing against.
• The other versions a visitor might see. Sites often serve a different layout on a phone, and some vary content by country. If the claim appears in only one of these, record which, and how you reached it.

Adverts in social media feeds are harder. Meta's Ad Library lets anyone search ads that are currently running. Ads delivered in the EU are archived for one year after their last impression, and ads about social issues, elections or politics are kept for seven years. A commercial ad shown only in the UK falls under neither, so do not count on finding it there once it has stopped. Record it while it runs.

How to do it, step by step

1. Make the ASA's screenshot. Take a full-page screenshot of each page, with the address visible. Most desktop browsers can capture a whole page from their developer tools; if yours cannot, save several overlapping screenshots and keep them in order. Do not crop. The ASA asks for "the entire page".
2. Make a web capture of the same page. A screenshot is a picture. A web capture keeps the page itself, with searchable text and its links, which is what you want when you are arguing about the exact wording of a footnote. We compare the formats in screenshot, PDF or web capture.
3. Record when each file was made. Record a SHA-256 hash of each file as soon as it is saved, and if you can, have it timestamped by an independent authority. That lets you show later that the file you produce is the file you made on that date.
4. Capture the qualifying pages, the advert's landing page and your own page in the same session, so that every capture carries the same date.
5. Write a short note for each capture: who made it, when, from what device and location, with what tool, and why. The chain of custody post lists what to keep.
6. Only then send your letter. Keep the proof of receipt, and attach the same captures you will later give the ASA.
7. Capture again when the five working days have passed, and again if the competitor says they have changed anything. Compare the new captures with the first. You will know whether the claim is still live, and you will have a dated record of what changed.

Keep the originals read-only and work from copies.

Mistakes that weaken your evidence

• A cropped screenshot of the headline. The qualification in the small print is often the argument, and the ASA wants the whole page anyway.
• Capturing after the letter. The page you record may already be the amended version, and you cannot show what came before.
• Relying on the Wayback Machine. It may not have captured the page on the day that matters, or at all, and it shows what its crawler saw. We explain its limits in Wayback Machine captures as evidence.
• Recording only their side. A comparison has two sides. Without your own page from the same date, the competitor can argue their figures were right when they were published.
• No record of who made the capture. A file with no account of where it came from is easy to question.

How Archivepanel fits

Archivepanel makes the web capture in steps 2 to 4. A real Chromium loads the public page and saves it as one self-contained HTML file with scripts stripped, with a preview, a plain-text version, a WARC and a JSON manifest that records the requested and final addresses, the times and the tool versions. As each capture completes, its SHA-256 digest is timestamped by DigiCert under RFC 3161, and anyone can check the token with OpenSSL. See capturing a page.

For step 7, the paid plan adds scheduled captures: capture the competitor's page weekly, then compare the text of any two snapshots to see what changed. On the paid plan you can also invite your lawyer as a viewer, or send them one snapshot by a link that expires.

It captures public pages only, one page at a time, at a desktop viewport of 1440 by 900, from our servers. It does not capture pages behind a login or adverts in a social media feed, and it does not show what a visitor on a phone or in another country would have seen. It does not replace the full-page screenshot with the address that the ASA asks for, so make that as well. The DigiCert timestamp is not an eIDAS qualified timestamp.

Sources

• Advertising Standards Authority, Complaining about a competitor's advertising: a guide to inter-party resolutions (IPR) and competitor complaints.
• Advertising Standards Authority, Landmark agreement extends ASA's digital remit, 1 September 2010.
• Committee of Advertising Practice, UK Code of Non-broadcast Advertising (CAP Code), section 3: Misleading advertising, rules 3.1, 3.7 and 3.33 to 3.35.
• The Business Protection from Misleading Marketing Regulations 2008, regulation 4, legislation.gov.uk.
• Directive 2006/114/EC concerning misleading and comparative advertising, Article 4 and Article 7, text as published on legislation.gov.uk.
• Meta Transparency Center, Ad Library tools.