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A Worthwhile Precedent

Economic

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

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