Who: Advertising Standards Authority (ASA)
Where: UK
When: October-December 2014
Law stated as at: 20 November 2014
What happened:
The Advertising Standards Authority (ASA) is reviewing its prioritisation principles for complaint handling, and has issued a consultation paper inviting responses on a range of questions.
The paper identifies four key principles to guide the ASA in its allocation of regulatory resource:
• what harm or detriment has occurred or might occur;
• the likely risk of action versus inaction;
• the likely impact of ASA intervention; and
• what resource would be proportionate to the problem to be tackled.
It sets out some explanation as to what these principles could be applied in practice, and seeks views from respondents on whether it has got its priorities right.
Why this matters:
With over 30,000 complaints each year to assess, the need for the ASA to allocate its regulatory resources sensibly – and for maximum impact – is clear. It’s good to see that, as an organisation, it is actively keeping these issues under review. (This is reflected also in its recent move to stop regulating “causes and ideas marketing” in non-paid-for space – so pro- and anti- gripes about wind farms, fracking, rail and road developments etc should feature much less heavily in the ASA’s weekly rulings lists going forward.)
While the proposed prioritisation principles are not intended to be strict criteria for action, it seems likely that the factors identified will be relevant in any discussions about informal resolution and whether it is appropriate in particular cases.
As for whether the ASA has got its priorities right, there are a few areas not covered in the paper that the ASA might like to consider:
• Detriment to advertiser: The risks of harm to consumers or to fair competition are clearly called out in the paper – and it’s clearly right that the ASA should give these significant weight. However, shouldn’t it also assess the potential detriment to the advertiser if the ASA gets its ruling wrong – and then allocate resource accordingly? For instance, shouldn’t the ASA have a responsibility to look much more carefully at an issue in an expensive, high-profile TV campaign (where the advertiser stands to incur substantial wasted costs if the ad is wrongly found to be non-compliant) – as compared with a review of the same issue in a small print-run leaflet that the advertiser doesn’t intend to use any more? Shouldn’t there be a presumption in favour of senior ASA resource and internal peer-review for investigations that could have a substantial financial impact on the advertiser?
• Competitiveness of the UK: Should impact on UK advertisers relative to the position in other territories be taken into account? The ASA is often a trailblazer compared to regulators in other markets, and clearly should not be afraid to make difficult decisions where necessary for the proper regulation of advertising. However, it would be nice to see some nod from the ASA towards concerns around consistency of regulation internationally and the benefits of a level playing-field across different jurisdictions.
• Consistency between online and offline: In a similar way, the differences between the ASA’s online and offline remits have the potential to cause an unfair imbalance between the positions of digital and bricks-and-mortar businesses. Offline stores for instance can get away with a whole range of practices in point-of-sale material that would be vulnerable to challenge if carried out in an online environment. Shouldn’t even-handedness across different business sectors be a valid concern for the ASA to take into account in its allocation of resource?
The consultation can be found here.
It closes 1 December 2014.
