In quick succession, the processes of the Advertising Standards Authority have recently undergone scrutiny and been found wanting, as Mark Smith reports after investigating the cases of UK2 Telecom Ltd vs Sir Hayden Phillips and Channel 4 and Big Fat Gypsy Weddings ads.
Who: Advertising Standards Authority, the Independent Reviewer, Channel Four and UK2 Telecom Ltd
When: May / August 2012
Law stated as at: 1 November 2012
This year the Advertising Standards Authority has been celebrating 50 years of keeping UK advertising legal, decent, honest and truthful.
One important aspect of the ASA's regulatory regime is the fact that in certain circumstances advertisers or complainants can request a review of an ASA Council adjudication or decision not to investigate a complaint. These reviews are dealt with by the Independent Reviewer of ASA Adjudications, a post currently held by Sir Hayden Phillips.
The Independent Reviewer has been in the spotlight in a couple of interesting cases recently. The first relates to a decision by the ASA Council not to investigate complaints about an ad for the Channel 4 programme "Big Fat Gypsy Weddings", while the second relates to a complaint about the Independent Reviewer's own decision not to review a case involving UK2 Telecom Limited.
Bigger, Fatter, Gypsier
Earlier this year a number of poster ads were published to promote the Channel 4 documentary series "Big Fat Gypsy Weddings".
The first poster showed a close-up of a young boy looking directly at the camera in an aggressive manner, while the second showed a man leading a horse with caravans visible in the background. The third poster was of two young women wearing low-cut bra tops and the fourth showed three young girls outside a caravan dressed for their first Holy Communion. Large text across all of the ads stated "BIGGER. FATTER. GYPSIER".
A number of people found the campaign offensive and denigratory and felt that it portrayed Gypsies and Travellers in a negatively stereotypical way.
The ads were initially considered by the ASA Council in February 2012 following the receipt of 372 complaints about the campaign. The Council decided that, despite the large numbers received, the complaints did not warrant investigation. The Council came to this decision on the basis that, while the ads might not be to everyone's taste, they reflected the tone and content of the show and were therefore unlikely to cause serious or widespread offence. The Irish Traveller Movement in Britain and a number of co-complainants then sought Independent Review of the Council's decision.
ASA executes U turn
In May 2012 the ASA agreed to reverse its earlier decision and investigate the ads on the recommendation of the Independent Reviewer. It noted that its original decision had been "flawed", particularly as the Council had made its decision without the benefit of knowing that the Irish Traveller Movement of Britain had complained.
The ASA's adjudication on the ads was published on 3 October 2012 and, perhaps rather embarrassingly for the ASA Council, some of the complaints were upheld.
Taste of his own medicine
The Independent Reviewer more recently found one of his own decisions under the spotlight.
UK2 Telecom Ltd had been on the receiving end of an upheld ASA adjudication and had complained to the Independent Reviewer alleging that the ASA's decision was irrational. The Independent Reviewer initially dismissed UK2 Telecom's challenge altogether.
UK2 Telecom sought judicial review of the Independent Reviewer's decision, alleging that he had failed to properly deal with their challenge to the ASA's adjudication.
The Independent Reviewer had a partial change of heart after receiving a pre-action letter, envisaging a re-investigation of the original issue, but this was not good enough for UK2 Telecom, who argued that he should have upheld their challenge in full.
UK2 Telecom promptly issued and served proceedings, which the Independent Reviewer initially contested in an Acknowledgement of Service. However, in a shock about turn, a few weeks later he decided to expunge the original ASA adjudication completely!
The judicial review claim itself was consequently discontinued, but a judge did rule on the issue of costs, holding that the Independent Reviewer should pay UK Telecom's assessed costs from the preparation of the protocol letter before claim up to and including the submissions on costs.
Why this matters:
These cases provide a useful reminder that reviews are possible, not only of ASA Council decisions on cases that have been investigated, but also of a decision of the Council not to investigate a complaint, as well as a decision of the Independent Reviewer not to review an ASA Council decision.