Advertising Standards Authority
Debate between Baroness Deech and Lord Smith of Finsbury
Lord Smith of Finsbury
My Lords, I must begin by declaring a very firm interest in this matter as chairman of the Advertising Standards Authority.
At the outset, let us remind ourselves of the overall picture. The ASA has been regulating ads in the UK for the last 53 years, and doing so very successfully. Last year we dealt with more than 37,000 complaints relating to 17,300 adverts. In addition to responding to complaints, we also initiated—of our own initiative—1,600 cases to make sure that the advertising codes were being complied with. Out of this, last year 3,384 ads were banned, removed or amended. If anyone thinks that the ASA is toothless, just look at this past week when we banned ads by some of the major companies in this country, including Boots, Bet365 and Coral. We act without fear or favour. In addition, last year we gave more than 194,000 pieces of advice or training to advertisers in order to make sure that they got it right in the first place.
All of this happens at no cost at all to the public purse; it is funded by a 0.1% voluntary levy across the advertising spend. We provide a one-stop shop for complaints about advertising in all media, including print, press, leaflets, cinema, television and radio, as well as online and social media. The self-regulatory system is able to respond to developments in the advertising world and in society much more quickly than a statutory system could. As the noble Lord, Lord Lipsey, pointed out, when we asked those who brought complaints to us whether they were satisfied with the way they were dealt with, even of those who were disappointed that we did not uphold their complaint 75% were very or quite satisfied with the process we went through.
I realise that of course the noble Baroness is not one of the 75%. It is worth noting that in her own case, which triggered her recent campaign against the ASA, she brought 22 separate items of complaint about an ad by Medical Aid for Palestinians. This was a highly complex case in an even more highly controversial area of public concern. Some of it related to matters of fact; some of it to matters of competing judgment. It needed very careful consideration. As well as to the ASA council, it also went to the independent reviewer, Sir Hayden Phillips. Only four of the 22 points were upheld, but no one can say that careful consideration was not given.
On one matter, I accept that the noble Baroness has a point, or at least part of a point. She believes that we should have brought in outside experts to advise on her case. We do bring in expert advice on some cases, normally to assist on detailed technical or scientific evidence. We did so in 16 cases out of 900 investigations last year. However, in a matter of political controversy, what would count as an expert? Who would qualify as an expert on all the passionately argued debates about Israel and Palestine? It is difficult, but none the less I have already made a commitment to the noble Baroness that, in future similar cases, we will give careful consideration to bringing in an outside expert if we genuinely believe that they may be able to assist the process.
However, on many other things that she said in her arguments this evening, the noble Baroness is simply not right. She said that the ASA was not able to be a full member of the Ombudsman Association. That is incorrect. The Ombudsman Association has three categories of membership: ombudsman members, which are categorised as meeting the criteria for technical ombudsmen; complaint handler members, which are categorised as having appropriate governance in place to function as best-practice complaint handlers; and associate members, who have an interest and relevant expertise in the work of the Ombudsman Association. Because it is not technically an ombudsman, the ASA is a complaint handler member. We are a full member of the Ombudsman Association and we share complaint handler status with the Information Commissioner’s Office, the Office of the Immigration Services Commissioner and the First Civil Service Commissioner and Commissioner for Public Appointments in England.
Baroness Deech
When I say “full member”, the ASA does not qualify in that top category, which has to be, as I said, independent of the industry or profession being regulated. The rules of the Ombudsman Association are quite clear on that.
Lord Smith of Finsbury
The Ombudsman Association is perfectly satisfied with the governance and procedures of the Advertising Standards Authority. Indeed, as the noble Baroness will have noticed, the other entities with which we share complaint handler status would fit with any person’s consideration of independence and probity.
Secondly, the noble Baroness says that the codes of practice are written by the industry and that there is no external input at all. Yes, the codes are written by industry representatives, but only after very full and thorough consultation. The Institute for Government recently said, in commenting on the inadequacies of government response to consultation:
“However, an example of best practice is the way in which the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) reacted to the results of a consultation on applying advertising standards to e-cigarettes”.
It is best practice in the view of the Institute for Government, which is a thoroughly independent body.
Thirdly, the noble Baroness said that the ASA is not accountable to anyone outside the industry—that it is not overseen. First, on broadcasting ads we co-regulate with Ofcom. Secondly, we work very closely with trading standards; on occasion we refer recalcitrant advertisers to trading standards. Thirdly, we have a robust and independent review process in place. Fourthly, we are, of course, subject to judicial review. As the noble Lord noted, in 53 years we have failed in judicial review on only one and a half occasions. Finally, we have issued a commitment to good regulation, which is published and available to be viewed by anyone. We have committed ourselves to an external assessment and review of that statement of commitment next year.
Fourthly, the noble Baroness said that ASA members are somehow not independent. Two-thirds have no connection or involvement with advertising or marketing before they are appointed. That is a criterion for appointment. The chair has to have had no connection or involvement with advertising or marketing. Members are appointed not by the chair alone, but by open advertisement and interview by a panel of council members, now including an external person as part of the interview process. I invite her, as I have done before, to come and see the council in action. I dare her to suggest that it is somehow not independent.
We had a very interesting tour of the horizon of a number of complaints about the sexualisation of figures in advertising from both the noble Baroness and the noble Lord, Lord Palmer. This is precisely the point: an awful lot will always depend on the precise nature of the image, the context in which it is seen and the way it will be reacted to by the public in whose presence it will be seen. These are issues that can only be judged, case by case, by a committee of sensible, rational, independent-minded people. That is precisely what the Advertising Standards Authority council is.
This is a system of regulation that works. It is admired around the world. If noble Lords ask anyone in advertising or advertising regulation in any other country in the world, they will tell you that the ASA system in the United Kingdom is the gold standard for regulation. We do not get all the things that we do right. We do, however, get most things right. We tamper with it at our peril.