Close-Up: An appeal to the ad regulator's reason

So, your ad's been banned. What do you do next? Anything? The current review of the Codes of Advertising Practice should offer advertisers a new appeals process, Brinsley Dresden argues.

The American Revolution was triggered by a simple principle: no taxation without representation.

When the Advertising Standards Authority took over responsibility for broadcast advertising regulation in 2004, advertisers also took over the responsibility for funding it, by way of its own taxation system: the 0.1 per cent broadcast advertising standards board of finance levy.

Unlike a normal tax, the levy is voluntary. And in the vast majority of cases, advertisers accept that the ASA reaches the right conclusions about complaints against ads.

But if the current review of the Advertising Codes of Practice is to avoid its own Revolution, we need a new system of representation for advertisers whose ads have been banned.

COUNTING THE COST OF AN AD BAN

Every year there are a handful of hard cases where advertisers feel that the paper-based process has failed them - such as Oasis, Swiftcover and Courage - with severe consequences, including wasted production and media costs.

They may also incur substantial losses if they cannot advertise for another year, because their annual advertising budget has been exhausted, with a commercial that they intended to run for a year only running for a few weeks, or even a few days.

The current economic climate simply serves to underline the imperative of certainty. For the ad agencies concerned, there can also be a fatal strain on the client relationship if a campaign is banned in short order. In order to maintain the support of advertisers and provide the fairness and transparency that should be integral to a self-regulatory system, there should be a new appeal system. For a precedent, look no further than the US and the National Advertising Review Board, which takes appeals from decisions made by the National Advertising Division.

WHY THE SYSTEM NEEDS FIXING

Change is needed because television commercials have already been through the rigours of the Clearcast prior approval process, both at script stage and as completed films. Advertisers, then, have a legitimate expectation that their commercials will be able to withstand any regulatory challenge.

The problem is compounded by the very restrictive terms of reference used by the current system of independent review. Under the system, an advertiser must show the independent reviewer that there has either been a substantial procedural flaw or that there is new evidence. According to the ASA annual report, no advertiser managed to satisfy those criteria for a banned TV ad last year.

In theory, an advertiser could then apply to court for judicial review. In practice, however, this is rarely a practical option. Not only is it slow and expensive, but the bar is set very high, with an advertiser having to show that the adjudication was one that no reasonable body could have made. In reality, the issues are usually far more subtly nuanced. The advertiser may simply believe the ASA reached the wrong conclusion, not that it was completely unreasonable.

The problems are compounded by the fact that the risks faced by advertisers have grown considerably in recent years. The one-stop shop makes it easier for consumers, competitors and non-governmental organisations to complain, and that is no bad thing. The ASA has also done a good job of raising its profile and educating the public. And various legal developments often leave the ASA as the only recourse against comparative ads.

Other problems may stem from the ASA's lack of a clear standard of proof for substantiation; the confusion between the requirement that an advertisement is not misleading and a requirement that it is accurate on any interpretation; and conflicting policies adopted by different regulators.

Some recent decisions bear this out. In September 2008, an ad for ExxonMobil was banned because of a claim that liquefied natural gas is a comparatively clean fuel, but did not expressly state that this is by comparison with other fossil fuels, rather than renewable energy sources. On a careful contextual analysis of the individual wording of the script, the complaint could be justified. But on the broader question of whether anybody would be misled or confused, the case against the commercial was rather weak.

Even more contentious was the decision in October 2008 to ban the commercial for the Coca-Cola fruit juice drink Oasis, featuring the "Cactus Kid" character, because it allegedly condoned teenage sex. The commercial had been carefully scrutinised and approved by Clearcast, as usual.

However, shortly after its first airing, the commercial was pulled by the ASA and then banned, having attracted a total of 32 complaints from members of the public. This was simply one regulator coming to a different view from another about very subjective questions of taste and decency.

But if there is to be a new appeal system to meet the needs and expectations of advertisers, it must not be open to abuse, and it must not impose a disproportionate burden to the ASA's already over-stretched resources.

TIME FOR A NEW APPEAL SYSTEM

Initially, an independent "gatekeeper" would need to decide if there was a substantial likelihood of a different decision on appeal, to filter out frivolous or vexatious appeals. There would need to be a time limit for lodging an appeal and the commercial would also need to be withdrawn pending the appeal.

The advertiser would need to specify the reasons for the appeal and pay an application fee to defray some or all of the ASA's costs. Applications would have to come from the advertiser's chief executive or equivalent. Further negative publicity and additional costs should also deter frivolous applications.

A panel of adjudicators, separate from the ASA council, could be selected from among a wider standing group of individuals from advertisers, agencies and members of the public. Although the panel members would need to be independent of the ASA, it could include retired ASA council members and draw on their experience.

Written briefs could be submitted and circulated in advance by the ASA, the advertiser, the complainant and Clearcast, setting out their respective responses to the appeal. The appeal itself would comprise a round table meeting to review the issues.

By allowing oral discussion between the parties and their experts, it should be possible to come to a more informed conclusion that commands the confidence of all the parties. Following the all-parties meeting, the decision would be reached by the panel and its own advisors, if any. A draft decision with a rationale would be circulated for comment in advance of its final adoption.

Although the ASA may be concerned about the time and expense of an appeal system, it would act as a pressure valve, strengthening the system overall and helping to ensure the continuing support of advertisers who bankroll self-regulation through the BASBOF levy.

The code review consultation, which ends on 19 June, is a once-in-a-generation opportunity to lobby for changes to the self-regulatory system, and the ad industry should not spurn it. After all, we don't need an American Revolution, just a very British tweak.

- Brinsley Dresden is a partner specialising in media brands and technology at Lewis Silkin.

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