Can’t we chuck the ASA on the ‘bonfire’, too?

The Lib-Con chancellor George Osborne has announced a ‘bonfire of the quangos’ with a wide range of bureaucratic, regulatory bodies being scaled back or biting the dust. Even media and telecoms regulator Ofcom is facing significant cuts. One body bucking this trend, however, is the Advertising Standards Authority (ASA), which will be recruiting new staff to police vast swathes of the internet previously outside of the watchdog’s remit.

For the ASA, the internet is better described as the ‘Wild West Web’. Online, a vast majority of products are marketed and sold without advertisers consciously adhering to regulatory codes. The ASA claims that it received 1,500 complaints about internet advertising last year, but it found its hands were tied.

This is now changing. Apparently, in response to ‘a formal recommendation from a wide cross-section of UK industry’, the ASA will now extend its coverage to all marketing communications emanating from the UK online, including advertising on Facebook and Twitter as well as the websites of companies and organisations of all sizes. Even members of the public could be censured online if it is found that they have been asked by companies to partake in marketing initiatives. It will be – in the words of ASA chairman Chris Smith – ‘the most comprehensive approach to the regulation of advertising in website space anywhere in the world’.

Yet as Ian Twinn, director of public affairs at British advertisers trade body Isba, put it, ‘the vast number of advertisers are mum-and-dad stores, maybe with their teenage son doing the website… They haven’t even heard of the codes, and why would they?’

Companies are being offered training by the ASA to ensure they don’t breach any of the advertising codes when they are implemented next March. Yet the practical consequences of many of the codes haven’t been thought through and the many ‘grey areas’ will be dealt with on a case-by-case basis. For example, the ASA has said that it will keep its hands off editorial content, apparently to protect free speech, but direct requests for fundraising made online will be covered.

But advertising is a free-speech issue, too. Why shouldn’t companies have the right to broadcast whatever message they like about their products? On this, the ASA is clear: it’s because the public needs to be protected from being offended or misled. As Chris Smith said about the current legislation, ‘the protection of children and consumers is at its heart’.

Of course, nobody likes to be lured into buying something which turns out, for example, to be much more expensive than an ad claims. But people are shrewd about these kinds of scams and if they’ve been caught out once, they’re unlikely to be caught out again. No business with long-term hopes of survival would continue lying to customers. Even those that have been accused of levying hidden charges, such as budget airline Ryanair, only get away with it because they still work out cheaper or better than their competitors. The introduction of a third-party regulator is unnecessary and can breed distrust between organisations and clients.

As it happens, the ASA points out that fewer than half of the complaints it deals with are about misleading claims. The rest are complaints about the ‘offensive’ or ‘harmful’ nature of the content broadcast, and the ASA has a very broad and puritanical take on what falls under these labels.

Take alcohol adverts, for example. The restrictions on advertising mean that creating an advert that reflects the way in which alcohol is actually consumed is extremely difficult. According to the ASA’s codes, advertisers are forbidden from ‘claiming or implying’ that alcohol can enhance confidence or popularity. Any hint that alcohol could be linked with ‘seduction, sexual activity or sexual success’ is a no-no, as is the suggestion that it is ‘a key component of the success of a personal relationship or social event’. Excessive drinking must not be encouraged and ‘marketing communications must neither show, imply, encourage or refer to aggression or unruly, irresponsible or anti-social behaviour nor link alcohol with brave, tough or daring people or behaviour’. Alcohol can’t be shown to overcome boredom or loneliness. It cannot be portrayed as ‘capable of changing mood, physical condition or behaviour or as a source of nourishment’. People featured in the ads must look 25 or over, must not be shown drinking in a work environment, and must not be ‘shown behaving in an adolescent or juvenile manner’.

It goes on. And these are just the rules that apply specifically to alcohol. Broader guidelines cover all advertising, and nothing that causes ‘widespread or serious offence’ is allowed. The interpretation of such vague terms lies with an unelected bunch of cronies.

The ASA is becoming more and more prudish, recently banning the display of guns on certain movie posters, ads showing ‘revealing’ women, and even censuring soft drink Oasis’s Cactus Kid character for being ‘pro-teenage sex’.

In its 2009 annual report, the ASA flags up that it was ‘asked to rule on a question that has tested the greatest minds for centuries: whether or not there is a God!’ This was said in jest – as if the ASA could possibly be the final arbiter of truth on such issues. However, that hasn’t stopped it from acting like Solomon the rest of the time.

As the ASA makes clear, only one person need find an advert offensive in order for the whole population to be prevented from seeing it. In what spiked’s Brendan O’Neill has termed the Tyranny of the Minority, if anyone who is particularly sensitive to an issue – or who simply lacks a sense of humour – complains about an ad, then the ASA can demand that the ad is withdrawn. No wonder that corporate competitors use the ASA as a means of undermining their rivals.

Strictly speaking, the ASA isn’t a governmental organisation – it’s funded by a 0.1 per cent levy on advertising. As such, it could be argued that the ASA’s rulings are not the same as state censorship. But given that the ASA’s chairman is a former Cabinet minister, who in turn appoints the other members of the organisation’s council, while the ASA’s codes must be approved by the government’s Office of Fair Trading (OFT), the political influence at the heart of the ASA is clear.

Restrictions on advertising are becoming more of a free speech issue than ever before. These restrictions are deeply censorious in the way they control public space and seek to protect the allegedly fragile public from offensive or immoral imagery. And the expansion of the ASA’s remit online means it’s not just big corporations that will now be affected, but small companies and individuals, too. To avoid the wrath of the ASA, many more of us will now need to consider the ‘grey area’ between editorial and advertising before we publish online due to this unnecessary, officious, unelected body.

Patrick Hayes is a co-founder of the Institute of Ideas’ Current Affairs Forum and one of the organisers of the Battle of Ideas festival.