PERSPECTIVE: English legal system forces advertisers to complain to the ASA

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.


Before commenting please read our rules for commenting on articles.

If you see a comment you find offensive, you can flag it as inappropriate. In the top right-hand corner of an individual comment, you will see 'flag as inappropriate'. Clicking this prompts us to review the comment. For further information see our rules for commenting on articles.

comments powered by Disqus