With the drawbridge now up on comments on Ofcom’s proposals for the ASA to take over the handling of complaints over radio and TV ads, we report on the ASA’s comments on the proposals and the flea in its ear that Ofcom got from consumer groups at a recent public meeting.
Topic: TV and radio advertising
Who: Ofcom and the Advertising Standards Authority
When: January 2004
The Advertising Standards Authority published its response to Ofcom's proposals for changes in procedures for processing TV and radio advertising complaints, whilst Ofcom held a public meeting to consider those proposals and got a flea in its ear from consumer bodies.
The Advertising Standards Authority is particularly interested in Ofcom's proposals. This is because, as previously reported on marketinglaw, the new system would involve the ASA taking over primary responsibility for that task, whilst at the moment it only handles complaints in respect of non-broadcast advertising.
Ofcom published its proposals in October 2003. Initially it invited responses by 9 January 2004, but it later extended the deadline to January 29th.
In its response to the proposals, the Advertising Standards Authority gives Ofcom's suggestions a massive thumbs up. This is backed by a survey which indicates that 69% of people answered "yes" when asked if Ofcom should contract out to the ASA its responsibility for handling broadcast advertising complaints.
Big increase in complaint volume
The ASA paper also predicted a substantial increase in complaints. This is because previous confusion as to who processes complaints about TV and radio advertising would be removed. In 2003, over 3,000 people mistakenly approached the ASA with complaints about TV ads and 1,000 did the same over radio ads. These complaints were directed to the relevant regulator by the ASA, but clearly having to be redirected to another body in order to make the complaint deterred a number of complainants. Out of the 3,000 people who wrongly went to the ASA over TV ads, only 1,000 eventually made a complaint to the ITC and out of the 1,000 who went to the ASA over radio ads, only around 300 eventually went to the Radio Authority.
In the new scenario suggested by Ofcom, the ASA predicts that up to 27,000 complaints could be received by the combined ASA in its first year.
Despite this, ASA faces the prospects of a massive increase in its workload with equanimity. Unlike some, it continues to believe that the extraordinarily optimistic 4 month period which Ofcom allows for the setting up of the new system will be enough for it to make all necessary preparations. This, despite the fact that on the ASA's own admission it will need to recruit additional members to its Council, hire additional processing staff on top of those it will be taking from Ofcom, change its procedures, introduce new training and IT systems and move into larger premises. There would also be the small matter of instituting a new code as well as the establishment of the new separate legal entities the "ASA (B)" for processing complaints, the Broadcast Committee of Advertising Practice for drawing up the Code and the Broadcast Advertising Standards Board of Finance dealing with the funding.
Undaunted by all this, the ASA remains gung-ho about the new plans, noting in passing that the introduction of the new system would remove an anomaly whereby UK is currently the only country in Europe which has a similar division between broadcast and non-broadcast advertising complaint handling.
Self not soft regulation
The ASA believes that self-regulation does not mean "soft regulation." It points out that tough decisions have been enforced against big name advertisers over breaches of the CAP Code for non-broadcast advertising. This has occurred despite the fact that in many instances the ASA has no legal backstop. For instance, unlike in the broadcast advertising sphere, where misleading, offensive or harmful advertising can lead to statutory enforcement action, in the non-broadcast advertising sphere, the legal backstop of OFT action can only be taken in respect of misleading or non-compliant comparative advertising.
The ASA adds that statutory regulation does not necessarily mean more effective regulation than self-regulation. It cites a number of examples of advertising that is "regulated" by statute, but where levels of actual compliance are by no means one hundred percent. Examples include credit advertising that is the responsibility of the OFT under the Consumer Credit Act, illegal fly posting that is the responsibility of local authorities under planning laws and breaches of the Trade Descriptions Act which trading standards prosecute.
Self-regulation also has the advantage of speed and flexibility over the often ponderous processes of statutory enforcement, although this is not entirely corroborated by the publication in late January 2004 of ASA adjudications in respect of advertising which in some cases looks to have been published in the previous summer.
More data protection law misunderstanding
The ASA's analysis of the data protection law position as regards the processing of complaints is also questionable. It says that it is currently unable to simply forward e-mailed complaints that it receives about TV advertising direct on to Ofcom because data protection legislation prevents this. This has something of the ring about it of recent pronouncements by other public authorities, in more tragic circumstances, that data protection laws have prevented them from retaining or passing on information when this has not in fact been the case.
Resourcing no problem
On the resourcing aspect, the ASA says that the non-broadcast advertising model has worked extremely well and should work with similar effect in the broadcast sphere. The resilience of the non-broadcast funding system over the recent two years of advertising recession shows, it says, that the system can weather tough times without cutting the resources needed.
Speedier processing needed
On speed of processing complaints, the ASA accepts that viewers and listeners will expect problem advertisements to be withdrawn without delay. This might involve a faster decision-making process than currently applies to all but the most urgent non-broadcast complaint, and the ASA Council is considering how it might adjust its processes to accommodate speedier resolution of broadcast issues. Additionally, ASA adjudications on broadcast advertisements will be published weekly rather than fortnightly, a development which would bring the practice here into line with that of the ASA in the non-broadcast sphere, where weekly reports have already been published regularly since 2001.
On the question of independence, the ASA tries to pre-empt arguments on the part of consumer bodies that the involvement of the advertising industry in the new system would put the ASA(B) and the BCAP in the pocket of the advertisers.
The presence of an industry-experienced minority on Council is an essential factor, the ASA says, in persuading the advertising business to cooperate actively and enthusiastically in a self-regulatory system that is not seen as an alien imposition. On Council the industry members do not behave any less independently than do the lay members, the ASA continues, and even if they all did, they would be out-voted.
Also, the arm's length funding arrangements guarantee both adequate resources and necessary anonymity so that a lack of funds or concern about upsetting a major contributor simply does not arise.
Cases where major multi-national corporations have taken the ASA through the Courts under judicial review demonstrate that the levy system provides adequate funds for such an eventuality, the ASA goes on, and also, that even "the biggest brands with the costliest lawyers" cannot intimidate the ASA into abandoning a justified stance. An illustration of this that the ASA cites is the Ribena Toothkind case in the High Court in 2000, when the ASA had to defend an upheld adjudication concerning Smith Kline Beecham (now Glaxo Smith Kline) one of the world's biggest and wealthiest drug companies.
When it comes to reviewing decisions over ad complaints, the ASA says that if it does become involved with processing broadcast ad complaints, it will introduce a new review procedure. This will be in place of the procedure that operated up to 29th December 2003 under the ITC, where there was no formal appeal to an independent processor.
In contrast, the system of independent review of ASA adjudications has been established for nearly five years. During that period the independent reviewer has received 221 requests for review and at the end of the process the Council has reversed its adjudication in just 16 cases. The ASA asserts that if the system were configured otherwise, with an appeals body that had the right to set aside Council adjudications, this could both undermine the authority of the Council and delay the ordinary resolution of complaints, with the parties coming to regard the appeal process as merely another stage of decision making.
Whether or not the recent decision of the Ofcom Content Board in the David Bedford/The Number case, reported elsewhere on marketinglaw, undermines this confident stance, we will have to wait and see.
These bold assertions by the ASA in support of the Ofcom proposals have contrasted with the "robust debate" which Ofcom held over its proposals in January 2004.
In this forum, consumer bodies such as the National Consumer Counsel accused Ofcom of rushing into these new proposals at far too fast a pace and of "handing over its teeth" to the advertising industry, giving advertisers "a licence to run their own show" and presiding over a "done deal."
Ofcom senior partner Kip Meek concluded at the end of the debate that the NCC had raised important issues that needed to be addressed. He identified two in particular. Issue one was the timetable, which he admitted was extremely tight, and there seemed to be an indication that this might well slip beyond the "early summer 2004" deadline for implementation which had previously been set.