In a previous incarnation, the Advertising Standards Authority's
new chairman, Lord Borrie, was a respected director-general of the
Office of Fair Trading. So when he stood up at the recent ISBA
conference and said that the ASA is being hijacked by advertisers making
complaints against competitors, everyone sat up and took notice.
Look at the figures published on p25 of this week's issue and you might
think he has a point. Of the 2,605 complaints the ASA handled last year,
2,246 came from the public and 359, nearly 10 per cent of the total,
from competitor advertisers. But is the system of self-regulation really
being hijacked in support of rival marketing strategies or are
advertisers reluctant terrorists?
To save flailing around in complex legal matters, I called Brinsley
Dresden at Lewis Silkin. 'There ain't no justice,' he said, explaining
that there are two circumstances in which advertisers lodge complaints
about rivals' advertising. The first is when advertisements make
misleading claims but without reference to a competitor. The main
redress is through a malicious falsehood action.
The second relates to comparative advertising - a genuinely useful tool
when it helps consumers make choices, but an excuse to mislead too. A
neat example of the latter, it seems to me, is the recent Ryanair
campaign comparing its prices to those of BA, and describing BA as
'Expensive bastards' for good measure. Members of the public complained
to the ASA on the basis of 'language likely to cause serious and
widespread offence' and the complaints were duly upheld.
Undeterred - and taking a leaf out of Trevor Beattie's Survival Guide On
How To Say Fcuk You To The ASA - Ryanair amended its no-frills ad to
read 'Expensive BA*****S'. Only then did BA go to court citing an
infringement of their trademark, BA, under the Trademarks Act of 1994.
Why? Because it was derogatory and it said the price savings were
And yet the judge still threw out BA's case, describing its attempts to
enforce its trademark as 'immature'. It is inevitable that the
adversarial system of English law creates winners and losers (and, in
Ian Hislop's case, 'bananas'). But to describe the loser as immature for
trying to obtain redress for being called 'expensive bastards' sends out
a clear message: don't bring your complaints to court. So what are
advertisers to do? Go to the ASA, of course.
Finally, I can't resist a plug for the best thing in Campaign this
Private View pits Steve Henry, builder, against another Steve Henry, the
creative partner of HHCL. It's rare for Campaign to send an expedition
to rummage down among the grass roots where, let's face it, most people
harbour a definite mistrust of advertising, and there is no better
demonstration of advertising's subjectivity than these two pages.