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Comment Please: Best Practice Advertising Regulation Checklist for New and Emerging SROs

Last year we developed a best practice advertising regulation checklist for Governments and Self-Regulatory Organisations (SROs). We invited comment on the draft and received invaluable feedback and constructive suggestions that improved the draft substantially. The Checklist was finalised in December last year.

Although the Checklist was appropriate for mature SROs it was generally acknowledged it was too demanding for new and emerging SROs. We have now prepared a simple version of the Checklist that is available at this link

https://gallery.mailchimp.com/99d4e2d2adefab4f203e8c2d4/files/Best_Practice_Advertising_Regulation_Checklist_Emerging_SROs_ALERT.pdf?mc_cid=c78d1756c4&mc_eid=%5BUNIQID%5D

We found the task quite challenging and we are not entirely satisfied that we have simplified it enough. We therefore seek your assistance and invite you to comment on the draft.

If we can receive your comments by 13 August we would be most appreciative as discussion on the Checklist is to occur at the APEC Seminar on Sharing Good Practices and Experiences on Advertising Self-Regulation Among APEC Economies being held in Lima, Peru on 22-23 August.

If you would like a Word version of the draft please let us know at gwiggs@ffar.org and we will forward it to you.

Glen Wiggs

 

 

 

 

Best Practice Advertising Regulation Checklist

Last May the Foundation for Advertising Research  embarked on a major project of creating a Best Practice Advertising Regulation Checklist. The Checklist is available on this link

https://gallery.mailchimp.com/99d4e2d2adefab4f203e8c2d4/files/Best_Practice_Advertising_Regulation_Checklist_.pdf?mc_cid=74399b2a51&mc_eid=5e4b1da3ac

There were two rounds of consultation and we received excellent feedback from practitioners and academics from all parts of the world with many constructive suggestions and improvements. Virtually all have been included in the final document. We are most grateful for the generous assistance we received in this most challenging project. We have now forwarded the Checklist to the industry Advertising Standards Steering Committee on APEC and other matters.

The request for a checklist came from the highest level. In November 2014 the 21 Asia-Pacific Economic Cooperation (APEC) Leaders, including Xi Jinping, Vladimir Putin and Barack Obama, signed up to a Leaders’ Declaration that included the following:

‘We endorse the APEC Action Agenda on Advertising Standards and Practice Development to promote alignment of advertising standards and reduce the cost of doing business across the region’

 The ‘APEC Action Agenda on Advertising Standards and Practice Development’ listed four challenging tasks for completion in 2015. One of the tasks was:

Develop an advertising regulatory checklist in 2015 that details key elements of a regulatory framework that facilitates trade and investment and protects consumers.’

 We undertook to develop the Checklist and we are pleased to complete it within the 2015 deadline.

The Checklist

The Checklist has two parts – Best Practice by Self-Regulatory Organisations (SROs) and Best Practice by Governments. There are two parts to Best Practice Advertising Regulation – Government regulation and self-regulation. It is not an either/or situation, as even the most sophisticated self-regulatory regimes require a regulatory framework.

The Checklist is long with a large number of questions. A very learned contributor rightly made the point that the list was long because it was a ‘set of ‘maximum’ demands that not more than a dozen or score of countries can satisfy’ and that a shorter version of ‘minimum’ demands would be more appropriate for new and emerging SROs. Consequently it is intended to devise a shorter checklist with essential ‘minimum’ demands in the New Year.

We believe that the development of a Checklist is significant as it provides guidance for those in Government and industry when developing advertising regulatory regimes. With increasing calls for ad hoc bans and restrictions it is important that proper procedures are followed.

We would like to emphasise that there is no one perfect model of a best practice advertising regulatory regime. Each regime needs to be adapted to meet local customs, culture and business practices. However the general principles remain constant.

Enjoy the Checklist.

Regulating Political Advertising

How does an advertising self-regulatory organisation (SRO) handle a complaint alleging that a tweet by the Prime Minister is misleading? Most SROs decline to regulate political advertising because of the inherent difficulties of a SRO regulating politicians who are in the business of regulating others rather than being regulated by an organisation over which they have no control.

One SRO has successfully regulated political advertising for the past 25 years. The Foundation for Advertising Research has written a  paper on the subject which is available on this link –

https://gallery.mailchimp.com/99d4e2d2adefab4f203e8c2d4/files/ALERT_18_15_REGULATING_POLITICAL_ADVERTISING_.pdf?mc_cid=678938dbd0&mc_eid=5e4b1da3ac

 

A Worthwhile Precedent

Best practice advertising self-regulation requires the advertiser, agency and the media to adhere to the self-regulatory codes. An effective way of enforcing this adherence is for the media to include compliance with the codes in their terms of trade. A good example of this and a worthwhile precedent is contained in the Fairfax New Zealand terms of trade for advertising on its Internet sites, newspapers and magazines.

Terms of Trade

The daily morning paper I read is a Fairfax publication. Every day in the classified section it publishes its ‘Advertising Terms and Conditions for Websites and Publications’. There are 25 conditions but right up front is Clause 1 that sets out clearly the expected standards for ads.

Clause 1 has four subclauses

– Subclause (a) deals with compliance with the law

– Subclause (b) deals with compliance with the self-regulatory codes

– Subclause (c) is a disclaimer against liability

– Subclause (d) deals a number of requirements regarding website ads e.g. no undisclosed cookies

We replicate Subclauses (a) and (b)

1. In accepting any material including electronic material or data for publication, and in publishing it we are doing so in consideration of and relying on the your express warranty, the truth of which is essential that:

 a) the material does not contain anything:
- that is misleading or deceptive or likely to mislead or deceive or which otherwise breaches the Fair Trading Act 1986;
- that is defamatory or indecent or which otherwise offends against generally accepted community standards;
- that infringes a copyright or trademark or otherwise infringes any intellectual or industrial property rights; – that breaches any right of privacy or confidentiality; that breaches any provision of any statute, regulation, by-law or other rule or law;

 b) and the material complies in every way with the Advertising Code of Practice issued by the Advertising Standards Authority Inc. (“ASA”) and with every other code or industry standing relating to advertising in New Zealand;

 The clause is very specific. The advertiser must give a warranty that the ad conforms to various laws and the ASA Codes. Note the phrase ‘the truth of which is essential’.

 Subclause (a) deals with misleading material and specifically mentions the Fair Trading Act. Other legislation is mentioned in general terms – there are over 50 different pieces of legislation that cover advertising in New Zealand. There is also the general phrase prohibiting ads ‘which otherwise offends against generally accepted community standards’. Interpretation of this will vary with the media. What is suitable in a Penthouse type magazine may not be acceptable in the daily newspaper.

In Subclause (b) not only are the ASA Codes mentioned but also any other codes. Certain industries and professions, such as dentists and doctors, have their own Codes of Conduct that often include advertising.

Discussion

In practice the media screen ads before publication. Usually the screeners are highly skilled and have attended seminars conducted by the ASA. With difficult ads the screener will contact the ASA for its opinion. Quite often the ads are acceptable with minor changes.

It is a system that is efficient, works well and is timely. Central to its success is the terms of trade. Most media in New Zealand have similar terms of trade.

The Fairfax terms of trade have many other useful clauses with some specific to website advertisements. The full terms of trade may be found on this link 

http://www.stuff.co.nz/about-stuff/10648197/Advertising-terms-and-conditions-for-websites-and-publications

Best Practice Advertising Regulation Checklist – Draft 2

Draft 2 of the Best Practice Advertising Regulation is completed and we seek your comment. It is available on this link. https://gallery.mailchimp.com/99d4e2d2adefab4f203e8c2d4/files/Working_Paper_Draft_Checklist_2.pdf?mc_cid=085f07d105&mc_eid=%5BUNIQID%5D

Last May we circulated Draft 1 of a Working Paper containing a draft Best Practice Advertising Regulation Checklist. The checklist covered best practice requirements for both advertising self-regulatory organisations and Governments.

The ‘APEC Action Agenda on Advertising Standards and Practice Development’ that was endorsed by the Leaders of APEC economies at their meeting in Beijing in November 2014 lists four challenging tasks for completion in 2015. One of the tasks is:

Develop an advertising regulatory checklist in 2015 that details key elements of a regulatory framework that facilitates trade and investment and protects consumers.’

We asked for comment on Draft 1 and we received a large number of most helpful and constructive contributions. We are very thankful for the generous assistance we received. The suggested amendments were wide and varied and the vast majority has been included in Draft 2.

We now seek comment on Draft 2. If you could let us have your comments by Tuesday 15 September we will be most appreciative. Michael Harker, Research Director of FAR, and I are meeting in Australia and hope to finalise the draft by the end of September. We will then formally forward it to the APEC Advertising Standards Steering Committee. The Steering Committee has already appointed a lead person to oversee the project for which we are very grateful.

You will note that we have used Tracked Changes in Draft 2 to clearly indicate the changes we have made. The document is in pdf form but if you would like a Word version please let us know.

We look forward to your comment.

Glen Wiggs

Director

Foundation for Advertising Research

Best Practice Advertising Regulation Checklist

We would like your assistance and input. The ‘APEC Action Agenda on Advertising Standards and Practice Development’ lists four challenging tasks for completion in 2015. One of the tasks is:

Develop an advertising regulatory checklist in 2015 that details key elements of a regulatory framework that facilitates trade and investment and protects consumers.’

Best practice advertising regulation has been a main objective of the Foundation for Advertising Research (FAR) since its inception 10 years ago. Our work included checklists for the audit of SROs. This was motivated by the interest the founders of FAR had in best practice advertising regulation over the past 25 years.

Over the past few weeks we have developed a Working Paper of a Draft Checklist that we believe will be suitable for the APEC region. We seek your feedback. The Working Paper is on this link

https://gallery.mailchimp.com/99d4e2d2adefab4f203e8c2d4/files/Working_Paper_Draft_Checklist_Consultation.pdf?mc_cid=b904d91a29&mc_eid=%5BUNIQID%5D

If you could let us have your comments by 29 May we would be most appreciative. Once the Draft is finalised we intend to submit it to the APEC Advertising Standards Steering Committee for its consideration.

Glen Wiggs

Director

Foundation for Advertising Research

South Africa ASA on Verge of Collapse

Trade media in South Africa report that the self-regulatory Advertising Standards Authority (ASA) is in a ‘perilous’ financial position and will cease to operate within 45 days unless the funding is found. The collapse of the ASA would set a dangerous precedent internationally and fuel argument for Government regulation.

Background

The ASA has a proud 47-year history being founded in 1968. It was an early international member of the European Advertising Standards Alliance (EASA) having joined in 1982. Its codes are based on the ICC Code of Advertising Practice and it has a complaints system where consumers can complain about breaches of the codes and have their complaints dealt with by an independent adjudication body.

On the face of it the ASA complied with the EASA 10 Principles of Best Practice Advertising Standards. However it appears that it has failed to comply with the Second Principle – Sustained and Effective Funding.

There has been discussion in the South African trade media about the ASA over the past few years. In 2012 there was considerable discussion with discord between the ASA and various industry members. Allegations included:

– Lack of transparency by the ASA regarding its budget and financial position

– In 2011 there was criticism of the funding model and a warning of a ‘pending crisis’

– The withdrawal of some key funders

– A ballooning ASA budget

– Slow turnaround of complaints

– The refusal of the ASA to process complaints about Government advertisements

– The ASA was becoming the ‘Mugabe of Marketing, with idiotic rules, iron fists and no money’

– ‘Lobbyists brazenly manipulating the ASA ‘by lodging multiple complaints to further their campaigns’.

– The codes were outdated

These issues will be familiar to self-regulatory organisations (SROs) especially when they are under stress. Successful SROs deal with the issues swiftly and remedy any perceived problems.

Urgent negotiations are now underway to resolve the funding crisis and no doubt the other issues will need to be resolved at the same time.

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