The ASA’s recent decision about the Tories’ demonic eyes posters shows
that self-regulation is not working. Statutory guides are an option,
Vanessa Hall-Smith says
During the Napoleonic Wars, mothers had a special warning for wayward
offspring: ‘If you don’t behave, Boney will come and get you.’
The current warning given to the ad industry is in a similiar vein. ‘If
you don’t support self-regulation, Westminster will intervene’ - the
implication being that legal control is the worst thing that could
happen, and will mark the end of advertising as we know it.
Such a view may well suit those with a vested interest in the current
system, but is it justified?
One of the supposed advantages of self-regulation is speed. While the
courts drag their feet in a manner reminiscent of the Court of Chancery
in Bleak House, self-regulation provides an effective system of
Yet the most relevant comparison is with prosecutions by trading
standards officers under the Trade Descriptions Act and these will often
take no longer than the average Advertising Standards Authority
Yes, but we’re flexible and apply the spirit, not just the letter, of
the code, says the ASA. Well, the decision on the ‘demon eyes’ poster
featuring Tony Blair has put paid to that argument.
We had to make the decision we did, says the ASA, because of the wording
of the code, rather than on the basis of what the Committee of
Advertising Practice intended. So much for applying the spirit of the
The evangelists of self-regulation go on to argue that the system allows
for the reversal of the burden of proof, by imposing an obligation on
advertisers to justify their claims, thereby protecting consumers and
However, there is no reason why such provisions could not be built into
a statutory system of control. In unfair dismissal claims, for example,
the employer has the burden of proving that a dismissal was fair.
When it comes to the investigation of complaints, the ASA’s powers are
limited. It has to rely to a large extent on correspondence and take on
trust a great deal of what it is told, without the benefit of any oral
evidence or argument.
ASA case officers have nothing like the investigative powers of trading
standards officers and the adjudication process takes place behind
closed doors in the absence of representation by the advertiser or
While it is possible to appeal against an ASA ruling, the appeal will
only be considered by the ASA chairman, who will have presided over the
Why doesn’t the ASA have an independent appeals mechanism? The law does.
So too does the Direct Mail Accreditation and Recognition Centre, which
has instituted an independent appeal system under the chairmanship of
the former director general of fair trading, Lord Borrie.
The industry often seems to forget that there are already systems of
advertising control in the fields of TV and radio that have a statutory
basis. Are they more burdensome to the industry than self-regulation?
Does the Independent Television Commission take longer to adjudicate on
complaints than the ASA?
Apart from the particular circumstances of TV as a medium, are the
provisions of the ITC code of advertising standards and practice more
cumbersome than the CAP rules?
The ASA was established in 1962 following criticism, in the Molony
report on consumer protection, that controls on advertising were
Thirty-four years later, the time has come for there to be an informed
debate on what role, if any, the ASA has to play as we approach the
Vanessa Hall-Smith is a solicitor with the law firm, the Simkins