Speaking at the
ISBA Conference on 3 March 2004, the Culture Secretary, Tessa Jowell
(left) said that a healthy, robust advertising industry is necessary for the
commercial PSBs to sustain their contribution to the considerable diversity in
and quality of programming we see in the UK.
She went on: “As you know Ofcom has recently consulted on proposals for
the co-regulation of broadcast advertising.
Ofcom is currently analysing the responses to that consultation and will
be preparing a detailed submission on proposals for the future regulation of
broadcast advertising, which will soon be considered by the Ofcom Board. I think it is clearly recognised that the
advertising industry has a successful record of self-regulation – a prime
example being the work of the Advertising Standards Authority. Clearly Ofcom will need to ensure that
any move to a co-regulatory system for broadcast advertising is robust enough
to discharge its statutory duties. Any
new co-regulatory body will be responsible for drawing up, reviewing and
enforcing Codes and setting standards for the presentation and content of
broadcast advertisements.
A response from mediawatch-uk to an Office of Communications
(Ofcom) consultation
mediawatch-uk is a
voluntary organisation, formerly known as the National Viewers' and Listeners'
Association with members throughout the UK and abroad. Our membership consists of people of all
ages, from all occupations and backgrounds, who are concerned about standards
of good taste and decency, the overall influence of broadcasting, and the media
generally, on the individual, the family and wider society.
mediawatch-uk
agrees with Ofcom that it is important that TV and radio advertisements do not
mislead or offend or harm citizens, consumers and viewers and listeners.
We
also agree with Ofcom that broadcasters should follow a set of rules to make
sure that advertisements are acceptable and do not offend or harm citizens,
consumers and viewers and listeners.
However, the requirement that
advertisements "have to be legal, decent, honest and true" is applied
by the Advertising Standards Authority only to non-broadcast advertising
coming within it's scope. (We note that the ASA's CAP Code also states,
Clause 2.2, "All marketing communications should be prepared with a sense
of responsibility to consumers and to society".) This simple, easily understood, code is not applicable to
broadcast advertisements which are subject to another, different, Code of
Advertising Standards and Practice drawn up, and revised from time to time, by
the Independent Television Commission.
It is somewhat misleading that Ofcom has
not made this important distinction in the consultation summary.
The
present regulatory system, whereby TV and radio advertisements are
"checked" by the joint Broadcast Advertising Clearance Centre, is
unsatisfactory in so far as there is no public access to the Centre and all
their decisions are taken behind the scenes.
Accountability is exercised through the ITC and "regulation"
occurs only after advertisements have been transmitted in the light of
complaints from the public that are received by the ITC, rather than by the
BACC. It is not clear whether or not
the BACC will continue to operate as it does now when Ofcom takes up its
regulatory functions or if these are contracted out to the ASA.
There
is rarely any public consultation with regard to the regulation of TV
advertising except when revisions to the Code of Advertising Standards and
Practice have been proposed by the ITC.
The most recent public consultation occurred in July 2000 and this
concerned mainly the removal of certain prohibitions thought by the ITC to have
become out-dated, for example, on 'Escort Agencies'.
In
its response to this ITC consultation mediawatch-uk said:
"This
Association readily acknowledges that there have been significant changes in
the market place in the last few years.
"We agree that the Internet has had
considerable impact on communication.
However, the Internet, which is largely unregulated, should not
determine advertising policy for Independent Television, or other domestic
media, which remains a different medium.
It is true that Internet take up has accelerated in recent years but for
most people television is perceived and used in a different way, that is, in a
'passive' way rather than in an 'interactive' way.
"It is right for the Government to require
reviews of existing regulation from time to time but such reviews should not be
seen as an opportunity to abandon constraints or prohibitions altogether. The public interest surely requires proper
and effective regulation in order to achieve and maintain necessary
safeguards."
T |
he
Independent Television Commission handles many complaints from the public about
broadcast advertisements. The ITC's
Annual Report for 2002 shows that 7,830 complaints concerning 2,252
advertisements were received during that year.
It was observed that these complaints were sent directly to the
regulator rather than to the broadcaster and that viewers react more negatively
because viewing of advertisements cannot be planned in advance and because
campaigns will involve continuing repetition.
Four
categories of complaint are tabled in the Annual Report: Misleading; Offensive;
Harmful; Miscellaneous. Most
complaints, 3,979 concerning 880 advertisements, were classed as 'Offensive'
and 9 of the "top ten" came in this category. Of these only 5 advertisements resulted in
decisions that upheld complaints from the public. The number of advertisements about which complaints were upheld
by the ITC was 136 - a mere 6 per cent of the total.
The
ITC's Annual Report for 2002 reminds us that it has no role in pre-vetting
commercials before they go on air, any more than it does with programmes. That, says the report, is the responsibility
of the broadcasters and predominantly, in the case of advertising, the joint
Broadcast Advertising Clearance Centre.
But the ITC nevertheless plays a critical role in setting boundaries and
standards. The ITC publishes the
complaints and its findings in monthly bulletins. These helpfully describe the processes through which advice is
received from little known external advisory committees. When complaints are upheld the ITC has power
to intervene and require that non-complying advertising is withdrawn.
In
the ITC's Annual Report for 2001 it states that a total of 7,796 complaints
from the public were received. Of these
3,303 concerned offence caused by 683 advertisements. Only 6 complaints in this category were upheld. In the "top 12" only 3 were
upheld. A total of 135 complaints were
upheld wholly or in part. The ITC
reminds readers that it does not see advertisements prior to transmission but
instead requires its licensees to pre-vet all material. Most potentially offensive material is
weeded out during the clearance process.
The Report confirms that the ITC only becomes involved if, after
transmission, it has reason to believe (often as a result of a complaint) that
it's Advertising Code rules have been breached.
The
Annual Report for 2000 states that the ITC received 7,632 complaints about
advertising, an increase of 14 per cent over 1999. The number of upheld complaints rose to 154.
From
our experience it is true that the ITC considers all complaints it receives
about advertising and regards them seriously.
However, from the statistics published in the Annual Reports above, many
people who take the trouble to complain must be disappointed and left wondering
why they bothered as so few are upheld.
mediawatch-uk
strongly believes that Ofcom should carry on the established practice of
publishing monthly bulletins, not only about advertising complaints but
programme complaints too. Moreover, the
role of an effective regulator in safeguarding the public interest would seem
to require that the power to pre-vet should be restored, even if not frequently
invoked. So far as we know the BACC,
which makes the decisions and approves advertisements for transmission on
behalf of a number of licensees, does not consult the public but uses the ITC's
Code of Advertising Standards and Practice for guidance. The ITC makes the BACC aware of any negative
public reaction to promotions it has approved and the ITC decides if an
advertisement may continue or should be withdrawn or shown within specified time
limits.
The
Advertising Standards Authority is an independent regulatory body set up by the
advertising industry to police the rules for non-broadcast advertising. As such it has only voluntary, rather than
statutory, public interest obligations although it claims to work to protect
consumers by ensuring that the standard of advertisements is kept high whether
a complaint is made or not.
The
Independent Television Commission and the Office of Communications do have such
obligations and duties that should be the overriding concern so far as
broadcast advertising is concerned.
Whilst
it may seem logical for the ASA to regulate TV and radio advertising it is not
demonstrated, within the present consultation by Ofcom, that the contracting
out proposed would serve the public interest better than if existing
arrangements were to be continued by Ofcom.
Indeed, we believe that the consultation paper, by some of its
misleading assertions identified above, is calculated to achieve what is being
proposed.
W |
e agree with Ofcom that people know what the ASA does and
how to make contact. This is because
sufficient resources have been allotted to successfully achieve and maintain a
high public awareness of its role. By
comparison, and rather paradoxically for TV and radio regulators, neither the
ITC nor the Radio Authority have adequately promoted their role in regulating
advertisements and adjudicating on complaints.
Merely publishing complaints bulletins evidently has not succeeded in
giving this important regulatory function sufficient attention. Consequently, it is no surprise that the ASA
receives so many calls about TV and radio advertising for which they have no
regulatory function. mediawatch-uk
advises public callers that complaints about TV and radio advertisements should
be directed to the ITC and not to the ASA.
Indeed, our Directory and web site state this.
mediawatch-uk
accepts that the Communications Act allows Ofcom to "contract-out"
certain responsibilities. However, we
believe that the original intention of The Rt Hon Chris Smith MP, the then
Secretary of State, to overcome public confusion with regard to communications
regulation was to establish a single regulator having a single point of contact
- or 'one-stop-shop' for citizens, consumers and viewers and listeners. To 'contract-out' regulation of important
parts of the 'converged' electronic media, like advertising, seems to us to
militate against this purpose and intention and will surely result in
continuing public confusion unless a widespread information campaign is
undertaken. Since much needed, and
continuing, public information campaigns about Ofcom as a whole have so far
been negligible we are not yet persuaded that the case for moving regulation of
TV and radio advertising will be different.
If
all other aspects of communications regulation are to be carried on by Ofcom we
can see no good reason why TV and radio advertising should be contracted
out. The 'one stop shop' should be
Ofcom.
mediawatch-uk
accepts that the existing Code of Advertising Standards and Practice should be
used initially but we welcome the prospect of changes in the light of public
response and reaction to broadcast advertisements. We draw attention, particularly, to Clause 13 of the ITC's Code
issued in 1995, which states:
"No
advertisement may offend against good taste or decency or be offensive to
public feeling and no advertisement should prejudice respect for human
dignity".
We
would add, from Clause 5.2 of the ASA CAP Code:
"Marketers
are urged to consider public sensitivities before using potentially offensive
material".
We
believe that such over-arching clauses should be retained in any future Code of
Advertising Standards and Practice for broadcast advertising.
It
is right that there should be consultation on these matters directly affecting
the public principally because TV and radio advertisements occur without prior
warnings or advanced information in the same way as programmes. This is not to excuse excesses in programmes
but merely to acknowledge and recognise the difference. Accordingly, rules and regulations should be
properly defined, stringent and rigorously enforced.
Even
if Ofcom contracts out the regulation of advertising we believe that Ofcom
rather than the ASA should publish complaints and retain the regulatory powers
and functions. That way Ofcom will be
seen to be acting to safeguard the public interest rather than an advertising
industry self-regulator, however effective it may be. We are reassured that "customer satisfaction would be a
priority" but this needs to be clarified and defined. We do not doubt that the ASA would treat
complaints seriously but we question whether an industry body would act with
the public interest as its priority even though there are aspects of its CAP
Code which commend themselves to the ASA's suitability for the task.
O |
n
the questions raised by this consultation we can see the logic of all
advertisements being regulated by a single body. However, without a restructuring, incorporating statutory public
interest requirements, we are not convinced that the ASA should be the winner
of this particular contract. Clearly
there are advantages for the industry in having to deal only with one
regulator. However, this would be to
the disadvantage of the citizen, consumer and viewer and listener who would
have to grapple, confusingly, with the ASA for broadcast advertising and with
Ofcom for complaints about all other aspects of broadcasting.
We
believe that the appropriate measures to protect the interests of citizens,
consumers and viewers and listeners should reside in the Code of Advertising
Standards and Practice. If the Code is
not open to variable and subjective interpretation, this would be the primary
regulatory instrument providing protection from harm, offence and the general
consumer questions of misleading or false claims.
The
ASA, which we note has welcomed the consultation, is not currently independent
of the industry and this is the primary reason why we believe that the
regulation of TV and radio advertising should be the responsibility of Ofcom -
which is independent of the
industry. Without statutory powers,
autonomous or deriving from Ofcom, the ASA will find it difficult to
"force broadcasters to do what they say". If the ASA is to win the contract the necessary powers must
somehow be devolved or transferred.
Neither
the ASA nor Ofcom has referred to the capability of handling an additional 7000
- 8000 complaints each year nor has it been disclosed how such additional work
would be funded. We note that the ASA's
Annual Report for 2002 recorded an increase of more that 10 per cent to almost
14,000 complaints. This increase is
attributed to public offence caused by companies using sex to sell their
products despite the ASA's CAP Code. We
note that only 315 complaints were upheld during 2002.
There
should be an appeals process that should give priority to the concerns of
citizens, consumers and viewers and listeners.
The interests of the industry and broadcaster should take second place.
It
is difficult to determine what ought to happen if the ASA "fails to treat
the general public fairly". Some
clarification by Ofcom of what constitutes failure and fairness would be
helpful to allow those being consulted to make an informed judgement.
5
January 2004
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