Maintaining Advertising Prohibitions
mediawatch-uk 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.
The European Convention on Human Rights does guarantee the right to freedom of expression but it should be noted that this guarantee is not absolute. Article 10 states:
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Proportionate restrictions are therefore envisaged in order to avoid "potential viewer detriment".
Prohibitions that have been in place up until now have been there for good reasons, mainly as necessary safeguards for the public. The notion of "freedom of expression" has not been a determining consideration until now and the implication that the European Convention prevents restrictions or prohibitions is plainly not true.
In advertisements for any products and services there is clearly a need to protect against false and/or extravagant claims. Whilst it may be true that consumers are the best judges of their own interests the function of and need for an advertising regulator is to ensure that the consumer is not misled or exploited in any way by those who advertise.
The claim that "recent social and economic changes have been sufficient to justify significant relaxation of existing rules" has not been substantiated in the consultation document currently under consideration. Before embarking on "significant relaxations" the public should be clear about the basis of the claims that unspecified "social and economic changes" are "sufficient".
Why has the ITC adopted a "lighter touch" approach. Who sanctioned this? And how does this differ from the "heavier touch" of the past? Is it an approach that really benefits the consumer/viewer or benefits the advertising industry and makes the regulators task redundant?
Who determines "public acceptance" and, without providing evidence, that the goal posts have moved? Form where to where? These claims have not been substantiated and to base significant changes in advertising policy on such vague and unverifiable assertions is plainly not in the public interest.
This Association notes that the Independent Television Commission states that it is not starting from an objective standpoint: it is stated that its pre-disposition is "freedom of speech". This seems to invalidate the whole purpose of a consultation altogether.
It is curious that the ITC says nothing about the broadening of the revenue base for Independent Television that would result from removing the prohibitions being considered. Instead the ITC has relied again upon unsubstantiated assertions that the European Convention on Human Rights will require prohibitions to be removed. Since the Human Rights Act doe not become law in Britain until October 2000 the provisions of the Act have yet to be tested and defined in the courts. On this basis removing prohibitions on certain categories of advertising could be seen as an unnecessary pre-emptive move.
6. Persons Appearing in Advertisements and in programmes.
We believe that the prohibition applying to news and current affairs presenters should be retained.
News and current affairs presenters are trusted and well respected people whose job is essentially different from other presenters. Their job is to tell the public reliable and truthful news and other information. As such their endorsement of goods and services brings with it the trust and authority associated with their work.
Clearly if such presenters are no longer involved in news and current affairs they should not be excluded from other work.
10. Politics, industrial and Public controversy.
We agree with the ITC recommendation that this rule should be retained.
We do not agree with any relaxation of the rule 18(a)(ix) prohibiting the advertising of pornography.
Nor do not agree with the unqualified assertion that "pornography is illegal". Only that which can be proved in the courts to "deprave and corrupt" is illegal. Much that is pornographic is now legal because the legal test has become unworkable. A test other than that which depends upon definition by the Obscene Publication Act is necessary.
We believe that the proper application of Clause 13 of the ITC's Code of Advertising Standards and Practice should apply, that is, that which "may offend good taste or decency or be offensive to public feeling and no advertisement should prejudice respect for human dignity". Any indecent, pornographic or obscene material ough to be precluded by this clause.
The ITC should not attempt to validate such advertising by using the colloquial phrase "top shelf". Nor should such advertising be allowed after programmes containing "adult material of a sexual nature". The ITC Programme Code is defective in that it permits such programming at all.
18(a)(x) Escort Agencies.
The proposal to relax the prohibition on this category of advertising is not supported by evidence that escort agencies are no longer "disguised prostitution services". We can see no good reason to remove this prohibition which may well be injurious to marriage by enticing married men away from their wives and families. Advertisers may not be acting strictly outside the law but there could well be implications on "health and morals" which the European Convention states should be safeguarded.
31 Inertia Selling
The prohibition on this should be retained because the public on the whole resents this method of selling. There may well be consumer protection but television advertising, which comes directly into homes unsolicited, should not be a vehicle for yet another means for inertia selling.
We do not accept the argument that because unethical advertisers use other media they should be allowed to use television. This is clearly not in the public interest.
APPENDIX 1 - ADVERTISING AND CHILDREN
9 Restriction on Times of Transmission
(e). We believe that the restrictions applying to merchandise related to children's programmes should be retained and extended to other media.
Many parents do face "pestering" from their children that is a direct result of advertising. We believe that there was, in the past, a good case for excluding programming which was part of a "total marketing" strategy. We recognise that this "phenomenon" has become established and would now be difficult to reverse. The best way forward, therefore, should be a policy of 'damage limitation'. We therefore believe that the existing policy should be retained with perhaps greater emphasis on the price of toys, and other products, targeted at children.
We agree that Rule 10 should not be changed.
6th July 2000
Click here for mediawatch-uk’s submission to Ofcom on the Regulation of Radio and TV Advertising
Click here for Sex in the Media
Click here for ‘Time to strengthen the law against pornography’
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From the 1 November 2004 the Office of Communications contracted out the regulation of television advertising to Advertising Standards Authority. For news and information visit: www.asab.org.uk