The Manifesto Club campaigns against the ‘hyper-regulation’ of everyday life and seeks to protect right to leaflet as a key civic freedom. Francesca Weil and Judith Gordon study a report issued by the Manifesto Club which highlights the threats to leafleting and small businesses’ marketing campaigns.
Topic: Direct marketing
Who: Small businesses
When: 30 June 2011
Law stated as at: 29 July 2011
On 30 June 2011, the Manifesto Club, a civil-liberties group committed to campaigning against the hyper-regulation of everyday life, published a report calling for an urgent review of the increasingly stringent regulation of leafleting and the defence of the right to leaflet as a key civic freedom.
A summary of the relevant law
The Clean Neighbourhoods and Environment Act 2005 ("CNEA") introduced a new section 94B into the Environmental Protection Act 1990 ("EPA") which stated that Schedule 3A (also a new insertion under the CNEA) would have effect in relation to the free distribution of printed matter. Schedule 3A sets out the regulatory framework for the distribution of leaflets as follows:
1. The offence: Paragraph 1 of the schedule creates an offence of unauthorised distribution where free printed matter is distributed without the consent of a 'principal litter authority' on any 'designated' land.
'Principal litter authority' ("PLA") is defined in section 86 of the EPA as local authorities (i.e. county councils, district councils, London borough councils etc.) and 'designated' land may only be selected where the PLA is satisfied that the land is being defaced by the discarding of free printed matter distributed there (as per paragraph 2 of the schedule).
2. Scope: Note that the definition of 'distribute' does not include putting leaflets inside a building or letter-box (as per sub-paragraph 1(6)).
3. Exclusion: Sub-paragraph 1(4) creates an exclusion for charities as well as distribution for political or religious purposes
4. Penalty: Sub-paragraph 1(5) states that a person guilty of the offence is liable on summary conviction to a fine not to exceed a specified level (currently £2,500).
5. Consent and fees: The offence under paragraph 1 may be bypassed if the PLA consents to the distribution (i.e. a licence is granted). This licence may however be subject to certain conditions (i.e. by reference to the material or the period/time in which the distribution takes place). Before giving consent, the PLA may also charge a fee of not more than an amount reasonable to cover the costs of operating and enforcing the framework under the schedule.
6. Powers: The PLA may seize material appearing to be in breach of the offence and may also issue fixed penalty notices (discharging any liability to conviction). If unspecified by the PLA, the amount of this penalty notice is £75.
On giving a fixed penalty notice, an officer of the PLC may require the offender to give their name and address. If they fail to do this or give false or inaccurate details, they are liable to a fine on summary conviction to a fine not to exceed a specified level (currently £1,000). Thus the powers of local authorities in this area are fairly comprehensive and leave little room for manoeuvre once an area has been so-designated.
Further local authority powers and restrictions on unauthorised posters and advertisements can be found in other legislation, including the Town and Country Planning Act 1990, the Highways Act 1980 and the Anti-Social Behaviour Act 2003.
Key findings of the Manifesto Club report
The report ultimately argues that stringent and expensive regulation means that it is becoming increasingly difficult to advertise village fêtes, promote clubs or even find a lost dog. Leafleting regulation is apparently prevalent throughout the country. Of the 245 local authorities who responded to the Manifesto Club's Freedom of Information request, 65 (27%) had introduced some form of regulation. A further 45 of those 65 councils had implemented (or will shortly be implementing) the CNEA and had designated an area within which licences must be obtained for leafleting. These zones cover most major cities in England including London boroughs, Manchester, Birmingham, Newcastle and Sheffield.
Licence fees vary hugely between councils and can represent a significant cost for some businesses. In Basildon, a licence costs £150 per day (£350 on a weekend), whereas in Oldham the cost is £50 per day. By further comparison, Wolverhampton charges £262 per distributor. The report therefore argues that local arts venues and small businesses are suffering, with the laws favouring a public space that is "dominated by those businesses that can pay the licence fee".
In defence of the practice, the report also highlights the advantages of leafleting as a marketing technique, citing the benefit of "hand to hand communication between citizens" as opposed to digital marketing via email and social networking sites. A BBC article on the report quotes Nigel Muntz of leafleting firm Out of Hand reinforcing this theory: "In the digital age, it's harder to get people's attention… If you send them a message on their smartphone they can delete it. Whereas with a flyer they have something in their hand that they have to decide what to do with".
The report dismisses the argument that leafleting causes litter, arguing that they cause no more mess than burger wrappers or crisp packets, and that the ultimate responsibility lies with the individual who fails to discard the items into a bin. Commentary on the report however notes that councils have stated that they have seen a dramatic decrease in the amount of litter dropped in the city centre since the introduction of the restrictions.
The danger for small businesses
Local businesses are cited as a key sector affected by the rules, the high cost of licences meaning that leafleting is simply out of their reach. The report gives the example of a gift store in Colchester, who wanted to hand out balloons and leaflets to boost sales but who were prevented by the local council's 'no-tolerance' rule on leafleting. "The council would rather see clean streets and council jobs than flourishing shops" said the owner.
A piece in 'The Argus', a local newspaper in the Sussex area, quotes a small marketing company in Brighton as stating that they have had to lay off 5 of their part-time staff as a direct result of the law, and that they know of other businesses who have had to do the same. The same article quotes another business owner as stating that the system is bad for anyone wanting to publicise anything, viewing it as a way of getting revenue from people. Small businesses are said to be turning to distribution companies who employ full-time flyerers in order to get 'good value' out of the licence fee. The implication however, is that there is still an elevated cost to hiring another company to hand out leaflets as opposed to businesses employing their own people to do so. Larger businesses are also said to be threatening smaller businesses by backing the measures. In London, the Heart of London Business Alliance allegedly encouraged the crackdown of flyering in Leicester Square.
No change in sight
The report cites the only legal challenge to these rules as coming from Keith Crombie in Newcastle, who took his local council to court three times claiming that the leafleting regulations infringed his fundamental rights to free speech. None of these challenges were successful however.
Why this matters:
The report argues that leafleting is an inherent part of Britain's culture and that its value, both as a more personal form of marketing and as a civic freedom, warrants protection. Whether these rules represent sensible regulation by councils with the legitimate aim of preventing litter, or are in fact an affront to basic liberties is open to debate, however the threat to small businesses and the marketing methods available to them would appear genuine.
Small businesses and start-ups that are often reliant on leafleting to raise public awareness of their services will arguably find it even harder to establish themselves as leafleting regulation becomes more common. Businesses will therefore need to consider other ways of marketing themselves, such as heavier reliance on the use of social networking sites and other electronic based media which can be targeted and more cost efficient.
Work Experience Student
Osborne Clarke, London