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."
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.
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.
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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