OPINION: Legal controls might not be a bad move for advertisers

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

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

complaints adjudication.

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

competitors alike.

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

agency concerned.

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

original decision.

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



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