Mounting concerns over TfL ad “censorship”

Topic: Outdoor

Who: Transport for London and CBS Outdoor

When: Summer 2007

Where:London

Law stated as at: 27 September 2007

What happened:

Complaints have been voiced about unwarranted "censorship" of proposed advertising on London's tube trains/stations and buses.

The concern has arisen because although it seems to be good enough for outdoor advertising in all other parts of the UK, Transport for London ("TfL") regards the CAP Code of Advertising, Sales Promotion and Direct Marketing as insufficient to protect the sensibilities of Londoners and the owners of the capital's transport media.

As a result, TfL requires that all those looking to advertise on its surfaces comply not only with the CAP Code but also with its own, or rather CBS Outdoor's, "Copy Guidelines."

Why CBS Outdoor? Because it holds the advertising concession for London Underground, Docklands Light Railway and London Buses and other London bus and tram franchisees.

CBS is obliged by TfL to vet all advertising posters on TfL's behalf prior to posting. It also reserves the right to refuse a poster design or creative without providing specific reasons. However it says that if submitted designs give cause for concern, it will offer recommendations to help bring the poster into line with the Copy Guidelines.

Copy Guidelines highlights

The full Guidelines can be found at http://www.cbsoutdoor.co.uk/web/Campaign-support/Copy-Approval.htm  but here are some "highlights".

Advertisements will not be accepted for or retained on display if in the opinion of CBS Outdoor they, for example:

• are likely to be defaced. [marketinglaw comment ("mc"): predicting what designs are "likely to be defaced" may be challenging ]
• contain images or messages that relate to matters of public controversy or sensitivity. [mc: this goes well beyond the CAP code which requires for instance that offence is likely to be caused ]
• contain illustrations which depict, or might reasonably be assumed to depict, quotations from or references to a living person unless the written consent of that person is obtained…CBS Outdoor will require an indemnity against any action by that person or on that person's behalf before such illustrations, quotations or references will be accepted. [mc: the second sentence is odd because a general indemnity which covered such claims would in any event be found in media owners' ratecards, whilst the blanket requirement for consent goes well beyond the CAP Code and follows the BCAP TV ad code when query is this appropriate for this medium ]
• use handwriting or illustrations that would suggest the poster has been damaged, defaced, fly posted or subjected to graffiti, after it has been posted. [mc: granted graffiti is a big problem in London, but in this context, was it really necessary to recently refuse permission for a treasure map style poster with distressed corners?]
• might adversely affect in any way the interest of the site owner eg The London Underground….(e.g. negative references to the environment) [mc: this seems very wide and to open the doors to arbitrary censorship ].

Why this matters:

As CBS Outdoor will be aware, it does not have carte blanche to reject copy on a whim. This was established in the 2004 case in which the North Cyprus Tourism Centre launched a successful court challenge (under the procedure known as "judicial review") to a refusal by TfL to carry innocuous advertising for Northern Cyprus as a holiday destination.

However on a day to day level advertisers will clearly have to take note of these additional and in some cases vague additional rules that will be applied, and expensively so if the end result is that a national campaign capable of running without difficulty everywhere else in the UK has to be specially adapted for London exposure.

Another aspect is that advertisers might want to impose specific obligations in relation to these guidelines in their ad services contracts if they would prefer to avoid footing the bill for such local adaptations.