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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
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 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.
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.
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
A best practice advertising Forum will be held in Beijing on 8-9 August. The Forum is for those involved in advertising regulation in APEC economies and is a follow-up to the successful Hanoi Dialogue. The Forum is under the auspices of APEC and is being organised by the Advertising Standards Bureau (ASB) with the support of an international committee,
The First Day sessions include
– International communication on global and national policy developments
– Setting and maintaining advertising standards – the International Code and best practice in adapting it to local econ
– Sharing of company best practice cases on ad self-regulation
– Working together to achieve fair competition and sound business environment – Compliance and the role of Governments – (Interactive communication)
The second day is a Capacity Building Technical Workshop with the workshops being led by people currently running self-regulatory organizations. This will be a most valuable for those involved in intending, emerging and experienced advertising regulatory organizations.
Topics covered include
– Funding the system and running a secretariat
– Dealing with ICT developments
– Effective industry and consumer awareness
– The complaints process
– Truth, accuracy and decency – a practical exercise with a mock jury
This Forum is a most important event for those involved in advertising regulation in the APEC region. For further information please contact Sandy Rose at SRose@adstandards.com.au