Measures likely to impair the advertiser’s freedom of commercial speech could fall foul of the Human Rights Act
Topic: Self regulation
Who: Advertising Standards Authority and Matthias Rath
When: December 2000
Where: High Court, London
Advertiser Mathias Rath challenged a ruling by the Advertising Standards Authority ("ASA") against his health product advertisements. Amongst his grounds was an argument that the finding against his advertising was a shackle on free commercial speech which offended against his legal right to such free speech under the Human Rights Act 1998 ("HRA"). Article 10 of the European Convention of Human Rights, which the HRA requires all public authorities, including the ASA, to follow when reaching decisions, deals with the right to free speech. Article 10 (2) states that this freedom may be "subject to such…restrictions..as are prescribed by law and are necessary in a democratic society." These restrictions must, however, be for specified purposes. These are national security, territorial integrity or public safety; the prevention of disorder or crime; the protection of health or morals; the protection of the reputations or rights of others; the prevention of the disclosure of confidential information; and the maintenance of the authority and impartiality of the judiciary. ("The Permitted Purposes").
In the Rath case, the relevant parts of the ASA Code were underpinned by statutory rules in the guise of regulations governing the advertising of medicinal products. This enabled the ASA to argue first that Code’s restrictions were "prescribed by law" and secondly that the restrictions were for a Permitted Purpose, namely in this case the protection of health. So the Rath HRA challenge was blunted, but will the ASA be able to hide behind Article 10 (2) whenever its decisions are challenged under the HRA? Surely not.
In the Rath case the court made reference to the Control of Misleading Advertisements Regulations 1988 (recently amended to extend to comparative advertising). These give the Office of Fair Trading the power to apply to the court for an injunction preventing misleading advertising if the "established means" for controlling the advertising in question have been unable to prevent it. It is well settled that for these purposes, in a non broadcast advertising context, the ASA is the "established means", but purely because its decisions have this statutory underpinning does this mean they are all prescribed by law?
This seems dubious to say the least, while there are doubtless many ASA decisions which do not flow from any legal restrictions which specifically relate to "national security" or any of the other Permitted Purposes. For example the ASA’s often criticised decisions in "soft" areas such as offensiveness and the causing of distress may in many cases operate generally in the area of public "morals". Unless the advertising in question is sufficiently extreme to warrant scrutiny under the Obscene Publications Act, however, the ASA’s decision making process cannot remotely be said to operate against a backdrop of legal restrictions aimed at the protection of public morals or any other Permitted Purpose.
Why this matters:
So far the ASA has an excellent track record in its defence of legal challenges to its decisions. Under the old regime, where only the common law of judicial review in the form of Wednesbury etc. was the basis for a challenge, only one challenge was lost. Since the HRA’s coming into force they have so far kept a clean sheet, but there must surely come a time when Article 10 (2) will not provide such a convenient safety net.