Who: GreenPeace Ltd (“Greenpeace”) and the Advertising Standards Authority (the “ASA”)
Where: UK
When: 21 September 2016
Law stated as at: 14 October 2016
What happened:
On 6 May 2015, the ASA ruled that a national anti-fracking press ad run by Greenpeace was misleading. The dispute regarding the ad concerned the wording “experts agree – [fracking] won’t cut our energy bills“. The original complaint was raised by Lord Lipsey, a member of the House of Lords, who disputed the statement on the basis of his belief that there was still a range of views on fracking and that a consensus hadn’t been conclusively reached. The ASA’s original decision was deemed controversial by some due to the fact that Lord Smith, the chairman of the ASA council, was appointed as the head of a fracking industry-funded shale gas task force around the time of the original ASA decision and that Lord Lipsey was a former ASA council member.
The original decision was also of particular interest as Greenpeace had argued that any restriction of the ad would be a breach of their right to freedom of expression under Article 10 of the European Convention on Human Rights. However, the ASA referred to article 10(2) of the European Convention on Human Rights, which provides that freedom of speech can be restricted, in a proportionate manner, where necessary in a democratic society in certain circumstances, including for the protection of the rights of others. The ASA interpreted the ability to restrict freedom of expression as being applicable in this instance as there was a risk of the rights of energy consumers, property owners and those who value the climate, countryside and weather being infringed if they were misled about fracking.
Following an appeal by Greenpeace and completion of the ASA’s subsequent independent review process, the ASA has now overturned their original decision. The ASA noted that “the general consensus among most appeared to be that a meaningful reduction in UK domestic energy bills was highly unlikely” and that the claim was, therefore, substantiated and not materially misleading.
Why this matters:
Unfortunately, this ruling doesn’t provide any details as to why the decision was overturned. The original ruling has been removed from the ASA’s website and so it isn’t possible to review how the two decisions compare against one another, neither did the ASA provide any commentary on the reasons behind the overturning of the decision. The effectiveness of the Independent Review process should perhaps be questioned, considering that the original ruling was published 16 months previously. From an advertiser’s perspective, the effect of banning an ad is immediate, whereas, the overturning of a decision is unlikely to be of any particular use for the advertiser other than to clear their name with the ASA, as the impetus for the ad is likely to have waned significantly in the intervening period.
However, the overturning still highlights the importance of the ASA’s independent review process, which gives advertisers, complainants or broadcasters who have been a party to the ruling, 21 days from the date on the ASA’s letter of notification of the final decision to ask the Independent Reviewer of ASA rulings, Sir Hayden Phillips, to review the case. More detail on the process can be found on the ASA’s website, which also includes a list of recent decisions that have been subjected to a review.
The decision also serves as an important reminder to advertisers to ensure that they have the necessary substantiation for any claims made in their ads before the claims are made.
