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EUROPE, MIDDLE EAST & AFRICA: UNITED KINGDOM

Advocacy Advertising: Anarchy or Information?
Author: Brinsley Dresden, Lewis Silkin

In July of this year, the High Court heard a 3 day application brought by Animal Defenders International (ADI) for judicial review of the ban on political advertising on TV in the United Kingdom, on the grounds that the ban is incompatible with the right to free speech under Article 10 of the European Convention on Human Rights, incorporated into English law by the Human Rights Act 1998. The judgement is still eagerly awaited.

ADI, an animal rights group, brought its case after the Broadcast Advertising Clearance Centre (BACC), the body that pre-vets virtually all television advertising in the UK, refused clearance for its ‘My Mate’s a Primate’ campaign, for infringing Rule 4 of Broadcast Committee of Advertising Practice (BCAP) TV Advertising Standards Code.  Rule 4 prohibits commercials by bodies whose objects are ‘wholly or mainly of a political nature’, or may be ‘directed towards any political end’.  In doing so, the Code implements the Communications Act 2003, which contains broad definitions of political objectives, which explain why the ban is so problematic.  Objectives of a ‘political nature’ include influencing government policy or public opinion on matters of public controversy in the UK. 

ADI argued that the ban in its current form can not be justified as necessary in a democratic society. It was supported by Amnesty International and the Royal Society for the Prevention of Cruelty to Animals (RSPCA), who both gave evidence of at the hearing.  Amnesty had been prevented from showing a commercial publicising the Rwandan Genocide and the RSPCA had fallen foul of the ban with its commercial alleging cruelty to poultry in the fast food industry.

Although it seems unlikely that the ban will survive its current form, a ban on advertising by political parties may survive.  The fear that a rich party could subvert the democratic process by buying up the airways through excessive media spending is one that may pass the test for acceptable restrictions on free speech.  But the courts may open the door that will unleash huge opportunities for ‘advocacy advertising’.

The judgement, which is due imminently, is of huge importance to several sectors, as well as the non-governmental organisations (NGO’s). 

Those shouting “hoorah” might include:

• NGO’s. At present, they are frustrated by the perceived iniquities of a ban that allow an oil company to advertise its green credentials, but prevent an NGO from attacking them.
• Advertising agencies.  They stand to gain a whole new set of clients among the NGO’s, as well as corporations targeted by the “advocacy advertising” looking to answer their critics.
• Media owners.  The additional new demand for their air time will give a much needed boost to falling revenue, although the NGO’s may seek to court PR and controversy, without significant media spending.
• PR agencies. Those corporations under fire from NGO’s are likely to have some reputation management issues.
• Lawyers.  There will be more adverts to clear, more complaints and more litigation.
• Democracy itself may be a winner, with the new advertising creating debate and perhaps stimulating involvement by those previously apathetic about the political process.

The losers shouting ‘shame’ might include:

• Multi-national corporations targeted by NGO’s in their television commercials.
• Regulators.  The UK’s self-regulatory organisation, the Advertising Standards Authority, or the statutory regulator, the Office of Communications (Ofcom), may have the unenviable task of regulating commercials in this sector. The BACC is likely to need to increase its already over-stretched resources.

In fields such as global poverty and the environment, post-ban advertising may not prove too controversial.  But advertising against vivisection or abortion, or in favour of drugs legalisation, present a huge challenge to regulators forced to decide what is acceptable, without being able to hide behind the cloak of a blanket ban. 

The advertisers and broadcasters will still have to self-regulate to ensure that commercials are in accordance with the law.  Problematic areas are likely to be taste and decency, and substantiation. Friends of the Earth (FoE) already has experience of the difficulties involved in substantiating political claims in cinema advertising. The Brazilian government had a complaint upheld against a cinema advertisement by FoE when they did not have sufficient objective evidence to prove that illegal logging was being tolerated.

The general consensus is that the time has come for a lift of the blanket ban, and there are plenty of interested parties who are ready, willing and able to take advantage of the political, moral and financial opportunities on offer.