This article is of importance to your business clients who engage in advertising, including where this involves the use of a website. If you read no further, please take a moment to look at the references given at the end of the article which, by way of example, relate to the practice of complementary medicine.1
It aims to progress discussion about the accountability of the ASA. It also proposes how your clients and, even more importantly, their trading associations and professional organisations might pursue a strategy to achieve the proper accountability and regulation of the ASA.
The adjudications of the ASA2 have been the subject of much debate, most recently in the House of Lords further to questions tabled by Baroness Deech.3 In November 2014, an adjudication by the ASA was the subject of an unsuccessful challenge in the case of R (Sainsbury’s Supermarkets Ltd) v Independent Reviewer of Advertising Standards Authority Adjudications [2014] EWHC 3680 (Admin); [2012] All ER (D) 161 (Feb).
The court has been reluctant to find against the ASA in judicial review proceedings, as was the case in R (Coys of Kensington Automobiles Ltd) v Advertising Standards Authority [2012] EWHC 902 (Admin). However, the High Court of South Africa has not been reluctant to intervene with regard to the South African ASA. In the case of Herbex (Pty) Ltd v Advertising Standards Authority [2016] (14/45714) (25 April 2016) (ZAGPJHC), the court made declaratory orders relating to the status and powers of the respondent to determine complaints and issue rulings, and also held that the applicant’s constitutional rights of association and freedom of expression had been infringed: inter alia, the court declared that all rulings issued by the respondent against the applicant were void. Arguably, elements of this judgment may be admissible as a persuasive (but not binding) precedent in court proceedings in this country.
This article ... proposes how your clients ... might pursue a strategy to achieve the proper accountability and regulation of the ASA
While preparing this article, the author made enquiries of the Competition and Markets Authority (CMA), which is a government department, with reference to Consumer protection: guidance on the CMA’s approach to use of its consumer powers (‘ the Guidance’ ) issued by the CMA in March 2014.4
The author’s contact with the CMA focused on its relationship with the ASA. In particular, the author sought to establish whether the CMA has power and discretion to intervene in a case under investigation by the ASA and in what, if any, circumstances the CMA, as the self-proclaimed ‘UK’s primary competition and consumer authority’ , could review the market-wide activities of the ASA.
As a private limited company, the ASA is not listed as an organisation about which a complaint can be made to the parliamentary and health ombudsman, notwithstanding that the authority is clearly performing a public regulatory function.5 Nor is the ASA subject to the Freedom of Information Act 2000.
Further to the author’s preliminary research, it is proposed that a possible strategy would be to lobby for change at the ASA by demanding that its co-working partners (which include the CMA, Ofcom and the Trading Standards services) and the Department for Business, Innovation and Skills investigate the lawfulness and probity of their respective relationships with the ASA. They could then impose regulations, and amend their policies, to secure the accountability and regulation of the ASA.
So, the objective is to bring pressure to bear on these co-working partners. By using their existing powers and influence, the co-working partners could require the ASA to update and improve its regulatory function and processes. This could especially be the case with regard to the ASA’s alleged failure to adhere to the principles of natural justice, good regulation, best practice, disclosure and transparency, and to provide ‘recourse to a court or administrative tribunal as a remedy’6 in accordance with Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising.7 Changes could require that the reasonableness of the whole of the ASA adjudication process be fully and properly overseen, both by way of judicial review and through the jurisdiction of a truly independent and effective tribunal.
Refer to the following, with author’s emphasis added in italics and references to the relevant paragraphs of the Guidance in brackets. The CMA states as follows: … the ASA is an independent self-regulatory body that endorses and administers the UK advertising codes to ensure that advertisements are legal, decent, honest and truthful. The CMA, a non-ministerial government department, does not authorise or regulate the ASA.
However, as indicated below, the CMA does have ‘discretion’ that it could exercise to bring about change at the ASA in relation to cases it refers to the ASA. If the CMA was to use this discretion, it could encourage other co-working partners of the ASA also to take action.
With specific reference to the Guidance and further to the enquiries the author has made of the CMA, the CMA further states as follows: The CMA’s use of established means: … The CMA has a lead and coordinating role amongst a number of consumer regulatory agencies under consumer law, but it has no powers to take enforcement action against these bodies or to require them to meet standards that it sets. The CMA’s only relevant discretion in this regard is in deciding to whom to refer cases... the CMA will have regard to the principles as outlined in its … Guidance … when working with established means. The CMA will only consider making referrals to established means/compliance partners that appear to us to meet the principles described in the guidance.
In summary, the CMA confirms that: ‘The ASA is considered to be an ‘established means’ in the area of broadcast and non-broadcast advertising’ , and also that: ‘the CMA considers established means as a body which can meet the principles listed in paragraphs 4.28 to 4.38 in [the Guidance]’.
Paragraphs 4.34 and 4.35 of the Guidance require the ASA (as ‘an “established means”’ ) to ‘demonstrate’ (among other things) the following ‘essential qualities/systems’ : that ‘it has regard for principles of better regulation and the Human Rights Act with regard to the rights of consumers and traders/businesses’ ; ‘there is an appropriate degree of independence in governance’ ; and further that ‘it is law abiding in its own operation’ .
Therefore, in the event that the ASA can be proved to have contravened all or any part of paragraphs 4.34 and 4.35 (or any of the provisions of paragraphs 4.28–4 .38), and in view of the wider, market consumer protection issues, it is arguable that the CMA could investigate such contravention, following which the CMA could also exercise: ‘its discretion to refer or not to refer to a compliance partner and whether to intervene in any case following referral’ (para 4.38).
In her contribution to the House of Lords debate on 29 June 2015, Baroness Deech addressed the performance of the ASA.8 Baroness Deech also addressed this issue in the House of Lords on 29 October 2015.9
In the circumstances set out by Baroness Deech, is the ASA ‘law abiding in its own operation’ according to paragraphs 4.34 and 4.35 of the Guidance? If not, should the CMA be referring cases to the ASA? Are there ASA cases in which the CMA should intervene? Is the ASA having regard to ‘the principles of better regulation and the human rights … of consumers and traders/ businesses’ ? More generally, are the principles set out in paragraphs 4.28 to 4.38 of the Guidance being fully complied with by the ASA in its capacity as an ‘established means’ partner working with the CMA?
1 See ‘Freedom4Health: vital Information re the Advertising Standards Authority (ASA)’, available here ; see here ; and see ‘Human rights and alternative healthcare (2014) April CILExJ p42.
2 Available here
3 See Hansard, HL Debate cols 1804–1806 , 29 June 2015; Hansard, HL Debate cols 1377–1394 , 29 October 2015; and Hansard, HL Debate cols 372–378 , 23 May 2016
4 Available here
5 Visit here
6 See Hansard, HL Debate col 1378, 29 October 2015
7 Available here
8 See Hansard, HL Debate cols 1804–1806 , 29 June 2015
9 See Hansard, HL Debate cols 1376–1394 , 29 October 2015. See also Hansard, HL Debate cols 372–378 , 23 May 2016, tabled by John Glen MP