MARKETING FOCUS: Where’s the threat to freedom? - A worried ISBA claims advertisers’ freedom of expression is being threatened by government ’meddling’. But do advertisers have real causes for concern? Jim Curtis reports

This week the Incorporated Society of British Advertisers (ISBA)

holds its annual policy conference. It kicks off with a debate on the

motion that ’Governments should not meddle with the freedom of

commercial speech’. Coming close on the heels of the furore surrounding

the tobacco advertising ban, ISBA hopes to use the debate to warn its

members that they should be on the lookout for further government

’meddling’ in advertising issues.

Admittedly, the ISBA debate is questioning interference by

’governments’, not just New Labour, but this government’s track record

with the marketing industry will inevitably come under scrutiny. There

are plenty of people in the industry who fear that marketing

communications is seen as easy prey by the more censorious elements of

Tony Blair’s ’Nanny State’.

This is a complex argument ruled as much by ideology as it is by actual

experience of government action so far. At one extreme are advertisers

insisting on their right to market legally available products in any way

they want. On the other is the vociferous lobby of consumer groups who

do not trust businesses always to behave responsibly when communicating

to them. In the middle is the government, in principle a defender of

free commercial speech, but in practice sympathetic to consumer

complaints. Be it beef on the bone or children’s lunchboxes, this is a

government that is not afraid to say what is best for us, and that is

bound to get up the nose of any free marketer.

But do advertisers really have cause to fear increased government

intervention?

John Hooper, director general of ISBA, says yes: ’In the past few months

we have seen interference across a wide range of categories, which

suggests that the government does not properly understand the role of

advertising. No sector is safe from the government having a go at

it.’

ISBA and its allies also warn of threats to the freedom of marketing

coming from Brussels. There is pressure from certain quarters of the

European Union to impose stricter regulations on the marketing of

alcohol, children’s products and cars, not to mention a complex web of

regulatory hazards concerning data protection, telemarketing and

comparative advertising.

In the year Britain holds the EU presidency, many fear that our

government may like to be seen to be leading from the front by taking a

closer look at some of these proposals.

Competitive restraints

ISBA warns that the only effect of increased state interference would be

to inhibit competition. Hooper says: ’New Labour says it is

business-friendly. If it is, it should understand that advertising is

critical to business success. If advertising is restricted or limited it

will inhibit competitiveness and innovation.’

And it’s not necessarily direct government intervention that advertisers

are concerned about: it is the feeling that New Labour is encouraging a

’nannying’ culture in which advertising is an easy target. Philip

Circus, chairman of the Advertising Law Group, says what he has seen so

far from the government ’is not an assault on the freedom of commercial

speech. It’s more that they have unwittingly provided a platform for the

enemies of free commercial speech.’

Increased consumer power is a trend widely noted and with a government

that’s keen to be seen as responsive to the mood of the nation, consumer

groups have sensed that their voice will be heard.

The newly-formed Food Standards Agency is the organisation advertisers

are most worried about. Professor Philip James’s investigation into how

to improve children’s diets contained proposals to stop food companies

targeting children with their advertising. McDonald’s was singled out

for criticism and, according to ISBA, early drafts of James’s report

recommended a total ban on advertising food to children. The report is

still with minister for health Tessa Jowell.

If there is any lesson to be learned from the relationship between

marketing and the state so far, it is that there has never been so much

responsibility resting on the industry to regulate itself. If

self-regulation is seen to fail, the government will step in. If it’s

working, they should, in theory, lay off. In many respects, the industry

has nothing to fear but itself.

Nigel Griffiths, the consumer affairs minister, is on record as saying:

’The government is ready to act in specific cases, whether it be on

health grounds vis-a-vis tobacco ads, on public interest grounds with

alcopops, or in cases of particular abuse or sectors which prove

themselves unable to accept the responsibilities the freedom that

self-regulation brings.’

Andrew Brown, director general of the Advertising Association (AA),

points to the government’s strong belief in self-regulation as evidence

that it is not as much of a threat to marketing as bodies like ISBA

suggest.

’They are more supportive of self-regulation in advertising than in

other areas. Five years is a long time, but there’s no reason to cry

wolf yet.’

Self-regulatory agreement

In this extremely polarised debate, the reliance of the industry on the

effectiveness of self-regulation is one thing upon which all parties

agree.

Caroline Crawford, commercial director of the Advertising Standards

Authority (ASA), says: ’We’re happy that the government is convinced

that self-regulation is the best way for the industry. The threat is not

so much the government as the industry shooting itself in the foot. The

industry must not give lobbyists the ammunition to hit them with.’

Crawford looks back to the alcopops debate as an example of how

particular sectors can unwittingly press the self-destruct button. ’It

was a salutory lesson because it taught marketers that they have a

responsibility for the reputation of their whole sector. The basis of

self-regulation is to allow the freedom of commercial speech, but that

freedom carries a great responsibility.’

A consistent industry defence when attacked is also crucial to warding

off increased state intervention in marketing. This was not so easy in

the case of the tobacco ad ban, because many advertisers, including

ISBA, saw it as a special case that could not be prevented, no matter

what arguments were thrown in its way.

But Circus is worried that advertisers failed to rally to tobacco’s

defence and, in so doing, have fatally flawed their case when it comes

to defending future sectors under threat. ’How long will it be before

the government attacks alcohol? When they do, our defence will be

weakened by the loss of tobacco ads. When it came to the crunch some

people didn’t believe in their own arguments and capitulated. If the

industry doesn’t believe in the freedom of commercial speech, there’s

not a chance in hell that we will convince governments to believe in

it.’

It remains to be seen whether advertisers have undermined themselves on

tobacco, but, realistically, because the government action was more

anti-smoking than it was anti-advertising, they have not.

What is clear is that there has to be a compromise between Circus’s

freedom of speech at all costs stance, and increased state intervention.

This middle path seems to be the one the government wants to follow,

unless its hand is forced by the industry itself.

Sheila McKechnie, director of the Consumers’ Association, says: ’There’s

a lot of posturing in this debate because the principle of regulation is

taken to extremes and it becomes absurd. Somewhere in the middle is a

more modern approach to regulation and that is where the government

should be. It has taken a balanced view and accepted self-regulation,

but will take statutory measures where it needs to.’

McKechnie is not alone in arguing that it is not lobby groups or the

government that has fuelled the regulation debate, but the industry

itself.

She points the finger not at specific sectors but at a wider tendency

toward misleading the consumer, particularly in the areas of how charges

are tiered and calculated. ’The industry has bought this debate on

itself because of confusion marketing; cases where consumers have no

choice but to go to the government and ask them to force advertisers to

allow people to make sensible choices.’

There is no doubt that the marketing industry faces a difficult future.

Increased state intervention is a real threat, especially in the area of

marketing to children, which many fear will be the next sector to fall

under the spotlight. But the industry can do something to prevent this,

and that doesn’t just mean a do-or-die defence of the freedom of

commercial speech.

Right to freedom

Advertisers should remember that the government is attempting to

incorporate the European Convention on Human Rights, which champions

free speech, into British law. As this will allow people to challenge

authority more freely, advertisers with a grievance will be in a more

powerful position.

Ironically, it will also allow advertisers to challenge rulings by

regulators such as the ASA more easily, so the industry must be careful

that self-regulation is not undermined in the process.

To resolve this debate, there has to be more recognition that the level

of state intervention will be determined by industry actions.

Self-regulation must work and be seen to work to keep the regulators at

bay.

As the AA’s Brown says: ’If the industry behaves badly then all the

signs are that it will get rough treatment at the hands of the

government. But in those circumstances, whatever it has done will be

indefensible.’

STATE INTERVENTIONS

- Sweden: Ban on advertising to children. Swedes would like to see ban

extended across the EU.

- France: Efforts to have the Loi Evin, banning alcohol advertising,

extended to other member states. Opponents argue it is breaching EU

regulations.

- Greece: Ban on advertising of toys between 10am and 7pm. Has halved

sales of imported toys. Also accused of breaching EU regulations.

- UK: As part of EU presidency the UK government is proposing a EU-wide

code of practice on car advertising to improve road safety. The code

would be based on UK guidelines, but is being opposed by ISBA and the

Advertising Association. A tobacco ad ban, including Formula 1, is to be

in force by 2006.

Source: Advertising Association.

This article was first published on Marketing