Keeping adverts clean

COMPLAINTS TO THE ADVERTISING STANDARDS AUTHORITY HAVE RISEN SHARPLY.

WITH ADVERTISERS STILL PUSHING THE BOUNDARIES OF GOOD TASTE, LAWYERS ARE BEING KEPT BUSY, REPORTS CHRIS BAKER

Not everyone wants to see a picture of supermodel Sophie Dahl, writhing in a state of nakedness and apparently unbridled excitement, first thing in the morning.

Or, even worse, when they are taking their children home from school.

The Advertising Standards Authority (ASA) banned the infamous Yves Saint Laurent Opium perfume poster advert after it received a record 730 complaints in 2000.

More recently, the ASA upheld complaints about an advert for fashion house Gucci featuring a woman with her pubic hair shaved into the shape of its logo.

Normally, just one or two people make complaints about adverts to the ASA, the Independent Television Commission (ITC) and the Radio Authority, depending on the medium used.

But with a downturn in advertising appearing to continue, complaints are going up as advertisers test the boundaries, and the public becomes aware of its rights.

The ASA's recently released annual report revealed that it received a record 13,959 complaints about non-broadcast adverts during 2002 - a 10.8% increase on 2001.

However, the total number of adverts complained about - 10,213 - increased only marginally (2.8%) compared with 2001.

Some 13.5% of the advertisements complained about were found to be in breach of the ASA code, compared with 11.2% in 2001.

The good old days of the PG Tips chimps or Smash robots are well over, with offensive advertising on the increase - complaints on grounds of taste and decency jumped by 24% and accounted for nearly a quarter of all complaints received.

However, the number of adverts these complaints actually related to stayed virtually static.

The ITC received 7,830 complaints about television adverts last year (7,796 in 2001) - the most complained about being Pot Noodle's 'the slag of all snacks' campaign.

The ITC upheld as offensive the use of the word 'slag'.

By contrast, the ASA did not in relation to posters, although it did uphold complaints over the poster which said 'Hurt me you slag' because it implied sexual violence.

Sunil Gadhia, a partner with City firm Stephenson Harwood, has just been appointed to the ASA's governing council (see [2003] Gazette, 25 April, 5).

'Council members make the final decisions on complaints that people make about particular advertisements,' he says.

While Mr Gadhia has worked on 'some' advertising cases before, his legal expertise is not the reason for his appointment.

'If legal advice is needed on a particular complaint, then the ASA will get it from its own solicitors,' he says.

'My position is to provide an independent view on the final decision on whether a particular complaint is justified.'

He attended his first council meeting last month, and was impressed by the level of debate.

'My objective is to make sure I keep up that level of skill and quality which has become a feature of that body.'

Mr Gadhia's first appearance involved discussing the ASA's 'interesting' investigations into Channel 4's poster adverts for the new series of the US undertaker-based drama, 'Six Feet Under'.

Billboards featuring pictures of embalming fluid with the text 'skin to die for' were deemed by the authority likely to cause serious or widespread distress, and be viewed as real by children.

A complaint against an advert for a test drive in a Maserati that said 'You'll drive like there's no tomorrow', was upheld as it was felt it would encourage dangerous driving.

But a London Underground poster for listings magazine Time Out - featuring a naked Graham Norton holding a picture of Pope John Paul II over his privates - was not deemed likely to cause serious or widespread offence.

Rupert Earle, a partner in the London office of Addleshaw Goddard, handles a lot of the ASA's legal work - mainly when advertisers complain about the ASA's findings.

'In a harder economic climate, there might be some pushing to try and get a higher turnover,' Mr Earle says of the advertisers.

'So there may be some pushing of the boundaries.'

Brinsley Dresden, head of advertising at City firm Lewis Silkin, agrees.

'Advertisers are always trying to break new ground and attract attention in a very crowded media market,' he says.

Mr Dresden points to Talk Radio's advert for a show on prostitution that used a picture of a woman's bottom with a bar code on it, against which the ASA upheld complaints, and the infamous poster featuring Ms Dahl.

He confesses to being shocked by the Gucci advert with the pubic topiary, but adds that the advertisers were right to claim it was intended only for the sort of magazine - such as Vogue - where readers were more used to 'artistic semi-nudity'.

'But, of course, the other media picked up on it and all the newspapers ran the picture,' he adds.

Jeremy Courtenay Stamp, a partner with City firm Macfarlanes, says advertisers are becoming more aggressive.

Shock campaigns such as those by clothing manufacturer Benetton and the comparative adverts for low-cost airlines are illustrations, he says.

Ryanair was recently censured for unfairly comparing its flights to Frankfurt with British Airways flights.

Most advertisers who complain are unsuccessful in their legal attempts to get complaints overruled, Mr Earle says.

His most recent case involved winning High Court backing when a US-based direct-mail advertiser sought judicial review of an ASA adjudication.

The judge dismissed the application as 'hopeless on the facts', and the Court of Appeal agreed.

But the advertiser has claimed he will take the case to Europe.

But Mr Earle warns there is a continuing need to balance rights of commercial expression with wider rights of protection of health and morals in article ten of the European Convention of Human Rights (the right to freedom of expression).

'Commercial rights to free speech are not as strong as those for political free speech, for example.

Sometimes free speech has to give way to the rights of the consumer,' he argues.

Mr Dresden and Mr Courtenay Stamp agree that the ASA has proved successful in raising its profile recently, which may also explain increased complaints.

More people know where to go, so when sufficiently riled they do just that.

Mr Dresden argues that it is likely the authority will soon become responsible for television advertising as well, when new regulator Ofcom has to delegate the work after taking it from the ITC, as is envisaged under the provisions of the Communications Bill.

'If you stopped the man on the Clapham Omnibus and asked him where he should go to complain about a broadcast advert, he'd probably say the ASA,' he says.

'It's much more widely recognised as a regulator.'

Mr Courtenay Stamp adds: 'Members of the public complain much more about everything and advertising is no different.'

Other developing areas in advertising include data protection rights in relation to direct marketing such as junk mail and text messages.

'It's becoming more difficult than it was [for direct marketers] because people are becoming much more aware of their data rights,' says Mr Earle.

In October, the government is likely to adopt a European Commission directive on the extent to which unsolicited text messages can be sent.

It will also cover e-mails, which may come as a blessed relief to those who arrive at their work terminals in the morning to find they have been sent 30 messages urging them to enhance the size of their manhood.

Measures to tackle claims relating to medicine and food are in the pipeline, and occasional pressure from other EU states for tighter guidelines on advertising directed at children mean that is another issue likely to be addressed.

Copyright and using images of people without their permission are also developing fields of litigation.

Mr Earle sees the area of advertising as one that will grow, but not necessarily because of more people complaining.

'It will grow because there is more and more law out there,' he says.

'At the end of every ASA publication, there's a list of legislation.

I re-write it every two to three years and that list of legislation has expanded dramatically.

There's just much more to comply with.'

As the public becomes increasingly aware of how to complain, laws and regulations change and advertisers take more risks, the likelihood is that more and more complaints will be made.

While most will be on issues of taste and decency, or reliability of facts, it is possible to argue lawyers will not often become involved.

The ASA claims its regulations are clear enough and not that open to legal interpretation.

But Mr Earle says that the extra work will come from lawyers helping advertiser clients to manage the risk of offence.

He says: 'If someone is planning an ad campaign they are really taking a pretty big chance if they don't get someone to legal it properly.'

Chris Baker is a freelance journalist