Historic car sellers Coys included “founded 1919″ and “since 1919″ in ads. The ASA upheld a complaint that these statements misled as there had apparently been breaks in business continuity and name changes. Coys challenged this and sought judicial review. Stephen Groom reports the verdict.
Topic: Misleading advertising
Who: Coys of Kensington Automobiles Ltd vs the Advertising Standards Authority
Where: Queen's Bench Division of the High Court of Justice, London
When: February 2012
Law stated as at: 5 March 2012
What happened:
Historic and classic car retailers and auctioneers Coys of Kensington Automobiles Ltd ("Coys") became the latest in a fairly short line of advertisers to seek judicial review of a decision of the Advertising Standards Authority ("ASA").
In 2010 the ASA considered a complaint in respect of two Coys advertisements. The complaint related to the claims "founded 1919" in one ad and "since 1919" in the other. One ad went on "Coys showrooms have been synonymous with fine and elegant motor cars since the company was first opened in 1919."
The complainant had been involved in unsuccessful litigation with Coys. He believed the company currently running the business was only incorporated in 2003 and did not start trading until 2004.
The immediately preceding business operating under the Coys brand had gone into insolvent liquidation leaving debts of £1.7 million. The existing owners had bought the assets and goodwill of that business. In earlier years there had also been other liquidations and name changes. The classic car business had also not started until the 1940s.
On considering the matter and the CAP Copy Advice note entitled "Types of claims: "Established since…, "the ASA determined that in context, "since 1919" and "founded 1919" were likely to be read as providing reassurance to potential clients and customers that Coys "had a long trading history, denoting financial stability and inherited goodwill and expertise."
In light of the facts, the ASA decided that the claims "founded 1919" and "since 1919" were unsubstantiated and likely to mislead, so it upheld the complaint.
Coys was unhappy with this outcome and sought judicial review.
The advertiser submitted that it was irrational to import into a basic statement of fact such as "founded in 1919" an assurance of financial stability.
CAP guidance also called into question
Coys also argued that that the CAP Copy Advice was irrational because this, too, implied an assertion of financial stability into a historical statement of fact. One passage in question runs:
"Consumers might be persuaded by claims that a company is well-established or has a long history, especially in industries that might have a high level of failed or bankrupted companies."
To succeed in its application for judicial review, Coys needed to persuade the court that no reasonable body, acting reasonably, could have found as the ASA had found.
Thirlwell J's verdict
Having considered counsels' submissions and the evidence, Thirlwall J threw out the Coys application.
Since the Copy Advice had come from those with expertise in the advertising industry who understood the potential effects of misleading advertising, he said, there was nothing irrational about it. Also, given its experience of such matters, it was plainly open to the ASA to conclude that the claims in question were capable of misleading potential customers.
Why this matters:
Although it is well-established that decisions of the ASA are susceptible to judicial review, cases in which the advertiser has run out the winner have been few and far between.
Perhaps Coys were encouraged by one such rare case, which was also quite recent.
Successful judicial review application against ASA in 2011
It was in March 2011 that Treacy J considered an application by Sandown Free Presbyterian Church.
The case related to a full page advertisement in the Belfast News Letter, which is apparently the oldest English language general; daily newspaper still in publication in the world, having been founded in 1737.
But we digress.
The advertisement was published before a Gay Pride parade in Belfast. It was headlined "The word of God against Sodomy" and invited readers to meet for a peaceful gospel witness against the act.
Following seven complaints to the ASA that the ad was homophobic and breached the CAP Code by being likely to cause serious or widespread offence (CAP Code 4.1), the ASA upheld the complaints.
The advertiser applied to the court for judicial review of the ASA decision. It argued that its rights to freedom of expression and religious beliefs under the European Convention of Human Rights had been breached.
Treacy J noted that the ad contained no exhortation to violence. It also made clear in the body copy that violent antagonism towards homosexuals was unacceptable and unjustifiable.
Given the particular circumstances in which it was published, the judge held, the ad was a genuine attempt to stand up for the advertiser's religious beliefs and to encourage others to similarly bear witness.
Paisley triumphant
Accordingly the judicial review application was upheld, a decision which Free Presbyterian minister the Reverend David McIlveen, flanked by the Reverend Ian Paisley, hailed as a landmark for future decisions allowing people to quote the Bible in advertising.
One suspects that the ASA did not view the verdict in a similar light, but the decision underlines that outside cases like this, where on any view exceptional circumstances and factors came into play, the court is likely to be difficult to shift from a position of deference to the ASA in the field of interpretation of advertisements and their impact on consumers.
