The new chairman of the Advertising Standards Authority (ASA), Lord David Currie, has some experience when it comes to leading regulators. Back in 2002, he became the first chairman of the newly-created Office of Communications, or Ofcom, before becoming the chairman of the Competition and Markets Authority (CMA) in 2012.
With that in mind, he has some idea of what makes a good regulator. And the key aspect is respect, he says, in an interview with Marketing Week less than two weeks after taking on the new role.
“Respect from the industry and from consumers – you have to have both sides of it. It’s no good being in cahoots with the industry if consumers don’t think you are doing a good job, and vice versa,” he explains.
“That respect often comes from really understanding the issues. A regulator probably can’t know more about the businesses it is regulating than the businesses themselves. But it can understand more about the overall environment and therefore the issues that are facing business. That is a very powerful tool.”
Concerns for advertisers
The issues facing the advertising industry are manifold. They include Brexit and its impact on ad budgets and the movement of talent, the growing influence of technology, and changes in public opinion. And for the ASA there is always the need to prove that self-regulation works.
“One challenge is to make sure self-regulation is regarded as a valid model. Lord Stephenson on the opposition benches [in the House of Lords] was rather critical about the self-regulatory nature of advertising – not that he could point to any defects, just that in principle he thought it was a bad idea. The argument needs to continually be made and I’m in a good position to do that,” he says.
We want to make sure the claims made are valid because otherwise consumers are misled to make the wrong decisions.
Lord Currie, ASA
Currie is himself a fan of advertising. He describes himself as a “defunct economist”, having spent a number of years as a professor of economics before switching to the regulatory world. But that background means he believes advertising, or getting people to buy more stuff, is important.
“Advertising is essential for getting your message out, entering new markets, helping to inform consumers, which is why the misleadingness criteria [for banning ads] are so important. We want to make sure the claims made are valid because otherwise consumers are misled to make the wrong decisions. It is economically important and culturally important and commercially important,” he says.
“Some [ads] are fantastically entertaining, some are truly uplifting, some are incomprehensible to me and some are downright bad – not sufficiently bad to cause offence but just bad. And that’s true of all creative output; the nature of creativity is you can get it wrong. But I think in general people find them entertaining and they are part of culture.”
Consumers’ changing attitudes
One of the big challenges for the ASA is keeping up with shifting public sentiment. Nowhere is that more obvious at the moment than in gambling. The government’s long-awaited review of the gambling sector was published at the end of October, which included ad guidance from the ASA.
According to the Department for Culture, Media and Sport (DCMS), the new guidance, which is to be drawn up by the Committees of Advertising Practice (CAP), will be designed to “help protect those at risk of problem gambling, and children and young people, by ensuring that the content of gambling adverts does not encourage impulsive or socially irresponsible gambling”.
Currie says the ad regulator has been “quite tough” on individual ads. Earlier this week it banned an ad from Paddy Power for encouraging gambling in the workplace. And last month it banned ads from Ladbrokes, SkyBet, Casumo and 888 run by affiliates (which are a paid a commission for finding new customers) that suggested a man could fund his wife’s cancer treatment by betting online.
“There were four that were banned last month where the gambling companies had relied on their affiliates and didn’t really know what was being done on their behalf. They have learned their lesson from that. They were in a bad place because they were causing deep offence. Being tough on those sorts of ads is what the ASA can do,” he explains.
The ASA is also set to unveil new guidance on how gambling brands use promotional offers and affiliates before the end of 2017.
However, Currie believes it is the “sheer volume” of gambling ads seen on TV that “upsets people”. And he suggests legislation brought in 10 years ago to allow gambling ads to appear on TV has had unforeseen consequences, although he is quick to add that any changes would be “a decision for government and parliament”.
“It goes back to the 2005 legislation, which came into place in 2007 and saw a huge increase in the volume. People don’t like the sheer volume and what they call in Australia the ‘gamblification’ of sport.
“I am old enough to remember when gambling was just associated with the dogs and horses. Now you can associate it with all aspects of sport. The decision to allow gambling ads to appear alongside live sport arguably was not a well thought-through decision, because it means they are concentrated there so you associate live sport with gambling.”
The evolution of regulation
Gambling is not the only area where the ASA is focusing its attention. It has recently introduced new rules around broadband advertising and has just extended the rules around advertising food and drink high in fat, salt and sugar (HFSS) to children beyond broadcast advertising to online.
The ASA is also working through new rules on gender stereotyping in ads. What links all these changes, says Currie, is the ad regulator listening to public opinion and evolving the rules to ensure they remain in line.
This was the case with the decision to bring online advertising of HFSS foods under ASA regulation, following the 2007 move to regulate broadcast ads. “Most people think it’s sensible and that’s a good example of the way things evolve and opinion moves with it,” he says.
There would be something wrong if everyone always fully complied. It would be odd.
Lord Currie, ASA
“Gender stereotyping is area another where, 10 years ago, what we suggested might not have been so well received. Now it is understood and, provided it is implemented in a sensible way, not a rigid way, [a new set of rules] can make a difference and is an example of regulation moving with the changing views.”
One of the jobs for the ASA chairman is to sit on the 13-strong council that decides each week whether ads should be banned. The council is made up of a range of different people, some with a background in advertising but most not, who apply the rules to complained-about ads.
“That is one of the strengths of the council arrangement,” says Currie. “You have 12 different viewpoints on it from all sorts of different backgrounds and experiences and that means that you have a fairly good sample and people will raise things you hadn’t thought of.”
He adds: “But we can’t have the right not to be offended. And the other aspect of it is you have a very multicultural UK and therefore different communities feel about things in different ways, and that is something one needs to be sensitive to too.”
Why self-regulation works
Currie says he has “long been an admirer of the ASA” and has worked with it before, when the decision was made by Ofcom to delegate broadcast advertising regulation to it. He believes advertising is one of the few areas where self-regulation works because it has buy-in from the industry.
“Most advertisers want to give a good impression – that’s the nature of advertising. Some discipline is needed but it’s not like the press where you are trying to dish some dirt on somebody,” he explains.
“[Advertisers] want to be creative, entertaining. Ads are interesting and fun and they should be, and it’s a great bit of the British creative sector so you don’t want everyone timidly putting out boring ads. There would be something wrong if everyone always fully complied. It would be odd.”
One of the big challenges for the ASA will be ensuring it remains relevant. When it started out, the regulator only had traditional media and big brands to worry about. Now anyone with an Instagram account who gets asked to plug a product is an advertiser.
“We are operating in a very fast-moving scene; technological change is very considerable and we need to make sure we are keeping up to speed with that. Clearly, the way advertising is done is increasingly using algorithmic technology. Are we up to speed on that? Could we be using this tech in our decisions?” he wonders.
“We have to keep up with the changing landscape. The rise of online, the increasing importance of websites – avoiding misleading claims through those routes becomes of increasing importance compared to the more traditional forms of advertising. It is not so much a changing remit as making sure we continue to cover the things we should across all relevant platforms and that does involve evolution as technology evolves.”