Self-regulation: the way ahead for advertising?

If you can have a single regulator for broadcasting and telecommunications, why not one for advertising?

Amid all the debate about Ofcom and the forthcoming Communications Bill, this question has received less than its fair share of attention. The discussion has been dominated by bigger political issues, such as the rights and wrongs of a single ITV and overseas ownership of UK television and radio. But as the Queen’s Speech approaches, those subjects should not drown out other important questions raised by the Bill and those who want to improve it.

Advertising regulation – or self-regulation – is one such issue. Broadcast advertising is regulated by two statutory bodies – the Independent Television Commission and the Radio Authority. Non-broadcast advertising is self-regulated by the industry, through the Advertising Standards Authority (ASA) (and its adjuncts, the Advertising Standards Board of Finance and the Code of Advertising Practice Committee), with backstop statutory powers through the Office of Fair Trading.

Now, with the ITC and the Radio Authority about to be subsumed within Ofcom, serious consideration is being paid to bringing the two systems of regulation closer. At the Labour Party Conference two weeks ago, the former Culture Secretary Chris Smith and David Arculus, the chairman of the Government’s Better Regulation Task Force, both gave strong support to the idea of switching broadcast advertising over to the self-regulatory model pioneered by the ASA.

The idea has been promoted by the Incorporated Society of British Advertisers and the Advertising Association: if Ofcom is truly meant to be a light-touch regulator, advertising is an obvious area where the touch can be lightened. The TV companies already handle the pre-vetting of commercials through the Broadcast Advertising Clearance Centre (and the radio stations through the Radio Advertising Clearance Centre). Why should statutory bodies be needed to provide a second tier of regulation, when in non-broadcast advertising self-regulation works well?

The idea was raised – but not accepted – in the draft Communications Bill in May. Section 8.5.4 of the Bill stated: “Ofcom will be given principal responsibility for regulating broadcast advertising. Within this context there may nevertheless be the opportunity for a greater degree of industry co-regulation. Progress has been made with the standards application and pre-vetting work of the industry-run advertising clearance centres, BACC and RACC. We are keen to see further developments building on this and drawing upon the experience of the ASA in running a self-regulatory system.”

Lord Puttnam’s Joint Scrutiny Committee went further. It said that the advertising industry had been “justifiably disappointed” that the draft Bill did not mark a clearer move in the direction of self-regulation. It concluded: “We consider it should be an early priority for Ofcom to consult on the scope for creating a more coherent system for advertising regulation, with a greater element of self-regulation for broadcast media.”

A paper from the European Media Forum, called “A Leaner and Meaner Ofcom” went even further, suggesting that all advertising control – broadcast and non-broadcast – might be handled by the ASA: “The draft Bill will need to be amended to implement a genuine co-regulatory regime for broadcast advertising. Powers will need to be introduced to allow Ofcom to transfer its regulatory responsibilities for advertising content to a new regulatory body. Alternatively, they might be transferred to the ASA, thus further simplifying the process. The new (or expanded) self-regulatory body would assume independent responsibility for code writing and review, complaints handling, enforcement of rules, and copy clearance and advice.”

This view was endorsed at the Labour Conference by Chris Smith (who led the move towards reforming broadcasting and telecoms regulation) and David Arculus (who knows the workings of the ad industry). Speaking at a meeting hosted by the ASA, both said they believed the ASA was a model of self-regulation that could be followed in other industries.

The Department of Culture, Media and Sport is looking at the issue again, before the Communications Bill reaches Parliament. However, in recent weeks there have been two high-profile cases of the statutory ITC overruling the self-regulatory BACC.

When 310 viewers complained about the Pot Noodle “red light district” commercial, which called the product “the slag of all snacks”, the ITC said it was unsuitable even after the 9pm watershed. When 69 people complained about the Carling Black Label “oral sex” commercial, showing a woman pouring beer over herself for her boyfriend to lick off, the ITC said it should not have gone out before the watershed.

The ITC’s head of advertising Ian Blair insisted that the ITC was not overruling the BACC more than in the past. But if a statutory regulator disagrees with the self-regulator on too many occasions, it is unlikely to want to cede its powers to it.

Torin Douglas is media correspondent for BBC News