Think BR: ASA process review - unlikely to lead to substantive change?
The ASA looks set to miss a golden opportunity to become more transparent and accountable in the way in which it handles investigations, argues Jo Farmer of Lewis Silkin LLP.
Jo Farmer is a partner in the Media Brands and Technology department of law firm Lewis Silkin
The ASA is currently undergoing a review of its internal processes, including the way in which it handles investigations, adjudications, enforcement and stakeholder relations. Comments were invited from the industry, and the ASA’s preliminary findings have been published http://asa.org.uk/Media-Centre/2010/ASA-Process-Review-interim-report.aspx. The ASA’s final findings are expected some time in 2011.
Many of the interim findings of the process review are laudable, and should be welcomed by the industry. They include trying to speed up resolution of complaints, improving consistency of approach with Clearcast, and increasing efficiencies in internal processes.
But while the interim findings of the ASA process review all read sensibly, it has to be said that the majority of the basic ideas behind the recommendations are all fairly obvious cosmetic enhancements, rather than any significant wholesale change.
One area which is notably missing from the findings of the review is any attempt to address the way in which advertisers can appeal against upheld adjudications by the ASA Council.
For advertisers who have a complaint upheld about a television commercial, the consequences are very severe, due to wasted production and media costs. In some cases an ASA decision to uphold a complaint will be entirely justified, but a television commercial will have been through the rigours of the Clearcast prior approval process both at script stage and at completed film stage, by contrast with the vast majority of non-broadcast advertisements. Having been through the trouble and expense of obtaining Clearcast approval, don’t advertisers have a legitimate expectation that their commercials will be able to withstand any regulatory challenge?
Even though the numbers of ASA upheld adjudications in respect of TV commercials are small (in 2009, 437 TV commercials were investigated by the ASA, of which 129 had complaints upheld against them), this will be of small comfort for the advertisers facing wasted production and media costs resulting from an upheld complaint.
Who doesn’t remember the Oasis Cactus Kid campaign, where the TV commercials were cleared by Clearcast and Coca-Cola spent vast sums of money on an integrated campaign in a variety of media, only to have the ASA uphold adjudications against the TV commercials? As a result of this the TV campaign was withdrawn, and the rest of the campaign in other media was left lacking the intended impact. http://www.asa.org.uk/Complaints-and-ASA-action/Adjudications/2008/10/Coca_Cola-Great-Britain/TF_ADJ_45117.aspx
Part of the problem is that the grounds for the ASA’s independent review of upheld complaints are extremely narrow. An advertiser must show that there has either been a substantial flaw in the adjudication given by the ASA Council or in the process. It is not possible to ask for an appeal simply because an advertiser thinks that Council got the decision wrong. Applications for Independent Review are rarely successful - between 2004 to 2008, 31 cases were referred to the Independent Reviewer, of which only three have been referred back to Council for further consideration.
An additional problem is the lack of transparency in the ASA Council’s decision making process. An advertiser undergoing an ASA investigation has to submit written evidence to the ASA Executive, which is then re-drafted by the Executive, who present it in a summarised form to the ASA Council with a recommendation either to uphold or not uphold.
Advertisers sometimes feel that the Executive does not fully understand their arguments, and they are left with the feeling that they could have presented their case more persuasively face to face with the Council, rather than via a paper based system. In addition, there is no dialogue between the advertiser and the ASA experts, and no opportunity to respond directly to any misconceptions that may arise.
We see the solution to these problems as an effective, independent appeals mechanism for television advertising that will ensure that advertisers and broadcasters maintain faith in the co-regulatory system, which could (and we believe should) have been part of the ASA’s process review. A change to the rules on when appeals can be allowed, a new independent appeals body, and oral hearings at which the advertiser is present would all assist in improving the fairness, transparency and accountability of the ASA.
Unfortunately, barring a last minute change of heart by the ASA, it doesn’t look like such changes to the appeals system are likely to be introduced. The ASA has noted in its interim findings that "the only realistic alternative to the current system would be an independent appeal panel, that would create an additional layer of decision making and increase costs, with little guarantee of increased effectiveness". What this misses, is that at the core of any decision making body, there must be transparency and accountability. And with a self regulatory body which is given its powers by industry consent, it can only effectively govern where there is a collective faith and respect for its decisions.
The measure of success of any appeal system can’t just be about effectiveness and how many decisions are reversed. I would have thought that a better metric of success would be to see whether the current consistency (or lack thereof) in decisions between Clearcast and the ASA, and the lack of an effective means for appealing adjudications, has the industry’s widespread support. Shouldn’t a system financed by advertisers do justice to advertisers?
Jo Farmer is a partner in the Media Brands and Technology department at Lewis Silkin LLP.
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