MEDIA FORUM: Could Ofcom avoid interfering with the ASA's role?

Self-regulation for TV advertising is seen as a victory for the ad industry but it raises further fears about Ofcom's remit, Alasdair Reid writes.

It's not often that the advertising industry gets a result where the Government's concerned. It's rare that the Government, Whitehall and the legislative process even acknowledge the existence of advertisers and the advertising industry. So last week could go down in history. Not one result, as it happens, but two - Government sources let it be known that they were prepared to look favourably on two arguments that the industry has been continuing to advance forcibly.

Both relate to Ofcom, the new communications regulator that will be the centrepiece of the soon-to-be-published Communications Bill. Government thinking over recent months has been that the BBC should continue to operate outside of any formal regulatory structures. This disappointed ad industry lobbyists who argued that there had to be more effective ways of keeping the Corporation in its public-service broadcasting box. The Government appears to have taken that on board and may give Ofcom real powers (for instance, the ability to levy fines) in this area, which is great news for those who claim that the BBC squanders public money.

Concession number two is arguably of equal importance from a narrow ad industry viewpoint. Ministers have indicated that they will allow Ofcom to devolve control of broadcast advertising (the maintenance of codes of practice plus pre- and post-transmission vetting of content) to a self-regulatory body similar to the Advertising Standards Authority.

It is believed that the concessions came as a result of vigorous lobbying by the Advertising Association and were revealed last week as political horse trading began in the run-up to the Queen's Speech next month. The speech is expected to announce the Communications Bill, with details to be published shortly afterwards. The concessions were revealed as the Government began its response to criticisms of the draft Bill by a Parliamentary committee chaired by Lord Puttnam.

The Puttnam committee first made its criticisms of the draft legislation (including 140 recommended changes) back in July. So a lot, or indeed a little, can still happen before the Bill is enacted. But the culture secretary, Tessa Jowell, and the trade and industry secretary, Patricia Hewitt, have both given their reassurances that there will now be no unnecessary barrier to self-regulation of advertising.

Which is great news, isn't it? David Kershaw, a partner at M&C Saatchi and the incoming Advertising Association chairman, thinks so. It is, he says, the result of a lot of hard work, lobbying and discussion. It's great that the Government has listened. It's also, he adds, a tribute to the way that self-regulation has worked in the non-broadcast arena.

"Other parts of the media are self-regulated and the ASA is a fine model and it will be good for advertisers if the authorship of the code is through a self-regulatory body. It can be brought up to date more easily. Statutory codes are more cumbersome. Changes will be able to be accommodated in a quicker fashion. There is an issue as to the detail of how it works and how pre-clearance works - and there will be pre-clearance, the BACC will not go away. With a press ad if there is a complaint the ad can be withdrawn. It's one thing doing that and quite another having to pull a TV commercial you've spent £1 million on."

Kershaw points out that a single self-regulatory body could also lead to code convergence. There are currently two main advertising codes: one set out for the press by the ASA's Committee of Advertising Practice and the other by the Independent Television Commission. It's obviously possible to produce a campaign that contravenes one code but not the other. If both sides of the industry are self-regulated, Kershaw argues, then common sense will be allowed to prevail and there will be fewer opportunities to abuse the system.

But how do publishers view all of this? With alarm, according to some sources. The worry is that, if broadcast self-regulation is overseen by Ofcom, it would then make sense for Ofcom to extend its remit to include the ASA. But those responsible for press advertising have always resisted any interference whatsoever by Government. This could be the thin edge of the proverbial wedge, couldn't it?

"Absolutely right," Steve Oram, the director of the Newspaper Publishers' Association, says. "What broadcasting does is its own business, providing its impact is limited to the broadcasting industry. There are great concerns and fears and we will resist any suggestion that work done by the ASA or the Press Complaints Commission would come within accredited self-regulation. It's a simple proposition - we don't want the ASA and the PCC to come under Ofcom."

Oram reveals that during the earliest stages of the Bill's evolution, the NPA sought assurances, first that traditional print newspapers would not be covered by Ofcom; and second that their related internet areas, which are also covered by the PCC and the ASA, would not be covered either.

"We do not want to see a creeping process by which these things come under Ofcom," he states.

Winston Fletcher, the chairman of the Advertising Standards Board of Finance, agrees that this is a subject that has to be sensitively handled.

"It's true that the newspaper sector is concerned that it will keep its historic independence from any kind of government control. We wouldn't want that either. We want to see a regulatory system that would be more sympathetic to the needs of advertisers and agencies. That's not to say it would be any weaker - the last thing self-regulation can afford to be is toothless. The strength of the ASA is that it is not frightened to take on advertisers big and small and make them tow the line. That will be true of broadcast too. We're in the process of developing. I am optimistic that we will see self-regulation in the broadcast sector without interfering in any way with the ASA."

Kershaw agrees: "Everyone will have slightly different anxieties. We have to find a way of reaching a degree of convergence that everyone is happy with. Everyone is agreed in principle though. Newspaper people are the champions of self-regulation."

But what do advertisers think? Bernard Balderston, Procter & Gamble's associate director of UK media and a member of the executive committee of ISBA, says he was taken aback by last week's turn of events. "ISBA has been talking to the Puttnam committee about encouraging self-regulation, so I'm pleased to see that there has been a positive response. The advertising industry has been keen to encourage the Government to see self-regulation as the right way forward. We are a mature and responsible industry and can be trusted to ensure there are no problems with self-regulation," he states.