Baroness Deech
Main Page: Baroness Deech (Crossbench - Life peer)Advertising Standards Authority
Baroness Deech Excerpts
Baroness Deech
To ask Her Majesty’s Government what plans they have to review the governance of the Advertising Standards Authority.
Baroness Deech (CB)
My Lords, I have two interests to declare. The first is as a former claimant, partly successful, to the ASA—an event that triggered my interest in its nature and procedures. The second is as a regulator myself of many years’ standing. I have regulated the BBC, IVF, student complaints and barristers; indeed, if it moves and needs regulation, I seem to get the job. I have immersed myself in what is good regulation and what is not, and this afternoon’s topic is accordingly part of a wider debate about successful modern regulation. I am entirely consistent on this topic; for years I have called for the BBC—specifically, its complaints system, which deals with topics that go to the heart of the reputation of the BBC—to be dealt with by an independent body and not by three trustees closeted with their editorial adviser at the top of a labyrinthine process.
The era of self-regulation is almost over. No doubt some speakers in this debate will tell us, quite properly, that the ASA’s rulings are good and that it has been a success for decades. That may be one view, but what matters today is perception and the distancing of vested interests from the profession or industry that is being regulated. The public demand no less. The Shipman inquiry brought about a sea change in medical regulation; the Clementi review ended the legal profession’s self-regulation; the Etherington report will lead to the end of fundraising self-regulation. The press, the BBC to some extent, and the ASA are the remaining self-regulators in that most important area of our life— information—and we have seen what vested interests are doing to attempts to reform the mode of press regulation.
Sir Brian Leveson analysed the insufficiencies of self-regulation in his report on the press. The ASA suffers from all those defects: the control of the funders over appointment and setting standards. The ASA is not a government agency, not elected, and not overseen. It is funded by the advertising industry through the levy collected by the Advertising Standards Board of Finance—ASBOF. The chair of the ASA is appointed by ASBOF. The council members appear to be appointed by the chair alone, and the fact that the majority are not connected with the advertising industry does not make the ASA independent in the regulatory sense. The codes of practice are written by an industry committee, the Committee of Advertising Practice—CAP—which shares an executive with the ASA.
Therefore the code-writing, administration, appointments and funding are entirely in the hands of the advertising industry. There is no external input at all, save for the very tiny consumer input, the Advertising Advisory Committee, which gives advice only to the Broadcasting Committee of Advertising Practice, and can be ignored after the advice is received. The chair and council members of the ASA double up as the company directors of the ASA with “oversight”. The ASA is not subject to freedom of information requests. Three industry panels advise the CAP and the ASA. It is not accountable to anyone outside the industry—indeed, it is hermetically sealed. Successful judicial review is very difficult, as it is directed only to the lawfulness of the ultimate review by the independent reviewer—one person—and in general cannot look at the reasonableness of the ASA decision itself.
For these structural reasons the ASA does not qualify to be a full member of the Ombudsman Association, which, like Leveson, requires members to be independent of those whom they investigate and that they have a minimum term of appointment of five years so that they are not under pressure when it comes to the question of renewal; ASA members have a three-year renewable term with a salary sufficiently generous to make a second term attractive. The Ombudsman Association requires that remuneration and employment should not be capable of being adversely affected by those who are the subject of regulation, that it should be accountable to an outside body, and should act according to the principles of natural justice, most notably showing all the material to both sides, which the ASA does not.
To reinforce its position, the ASA is a member of the European Advertising Standards Alliance, which openly promotes self-regulation and is chaired by none other than the CEO of the ASA. The ASA structure may mean that the UK is in breach of European Union directive 114 of 2006, which requires recourse to a court or administrative tribunal as a remedy.
Does this matter? I will give an example. Right now there is intense interest in obesity and sugar, and already it is being suggested that there can be no credibility in the ASA’s rulings about sweet stuffs and junk food since it is perceived to be in the hands of the advertisers.
That necessary trust cannot be established without radical reform of the self-regulatory model. That is more important than ever before because of the widespread nature of new technology, bringing ads into and over an ever-increasing spectrum and making them particularly unavoidable by children.
If the ASA observed the rules of natural justice and gave adequate reasons, and treated both sides equally, there might be trust, but more often than not the reasoning of the rulings are guesswork and subjective. As I will show, there is a lack of consistency in judgments. Some take an impressionistic line; others are more objective with scientific input, but only a handful of experts are listed on the ASA’s website and there are no guidelines on whether an expert is going to be called in on the scientific or political matter under review.
Were they not fundamentally so illustrative of lack of reasoning, some of the ASA rulings on offensive material would be risible. Occasionally the ASA is in full Mary Whitehouse mode and objects to any ad which in its view suggests sexuality coupled with women in uniform—police, stewardesses or nurses. An ad is allowed to be “sexually suggestive” but not “overtly sexual”. Your Lordships and I may be out of touch with this sort of categorisation.
At other times the ASA is very relaxed about what members of the public see as pornographic pictures of naked women, and the rulings turn on the ASA’s view of which bits of the woman are on display—her facial expression, stance and gaze, or the position of the item she is holding to advertise. Holding a giant perfume bottle is deemed provocative, but not a wrench wielded by a woman, who was deemed to be only mildly sexual. A Ryanair cabin crew charity calendar ad at a time when undressed women in calendars were all the rage was deemed offensive because the women were wearing underwear and looking directly at the reader, but naked women with a look of defiance are okay. Never was consumer input more needed than in those types of rulings, together with some intelligent reasoning to dispel the notion of randomness. An ad calling on women to be beach-body ready, showing a model in a bikini, was okay, but an ad on a Polish-language website showing an ideal man’s body, with the suggestion that it could be swiftly achieved, was not. The mind boggles at the conversations that must have gone on in the ASA offices.
On questions of race, religion and politics, the ASA sometimes seems out of its depth. All of this could be made sense of with a consumer-led and non-industry-funded body that gave considered reasons for its rulings.
What is the ASA’s purpose? Is it to prevent misinformation being given to the public by scrutinising all claims objectively; is it to hold the balance between the complainants and the advertiser; or is it to protect the industry or the consumer? The time has come, after 50 years of lagging behind best practice in regulation, to bring the ASA into the 21st century. My suggestions draw heavily on the Leveson inquiry and other studies of good regulation.
This is what the ASA should do. The chair and board members should be appointed in a genuinely open and transparent, independent way without influence from the industry or government. The appointment panel for the chair, who should be independent of any political party, should follow Nolan principles and include, for example, the Commissioner for Public Appointments. Board members should be similarly appointed for one non-renewable term, and the funding settlement should be for long enough to reduce industry influence. The code drafting should include a majority of independent members. Twenty-first century governance requires a board with non-industry individuals to oversee the council. There should be an appeal system with more members and a wider remit. All the material should be shared with both sides and neither side should be allowed to spin out the proceedings by ignoring deadlines for response. There should also be clear guidelines about the use of experts.
If the ASA will not do that, one has to ask: why not? A statutory body is unlikely to be any more expensive or complicated but will be needed if self-regulation is not abandoned. We do not want red tape but regulation is still demanded where the welfare, rights and future of the public would be at risk without it. The rise of social media and the internet make it essential that there is a public and reasoned grip on advertising.
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.