Hush, Hush! The Advertising Standards Authority is Investigating

An ‘Investigations Executive’ at the Advertising Standards Authority (ASA) wrote to me the day before the Climategate scandal broke.  Although the content of her letter was surprising, to put it mildly, subsequent events rather overshadowed it. Publication of the Climatic Research Unit’s emails, the collapse of the Copenhagen climate summit, and the lethargy of the Christmas holidays have postponed responding to the ASA’s letter.

Before I go any further, it is worth pointing out that the ASA is not a statutory body; it is not even an ‘authority’ in any accepted meaning of the term. It has no legal powers and nor is it charged by government with the duty of enforcing legislation. Quite why the word ‘Authority’ appears in its title is a mystery. Its remit extends no further than the advertising industry of which it is a part.

The ASA was founded in 1961 by the advertising industry as a means of self-regulating and of avoiding government regulation.  Funding is provided by a levy on advertisers. There are some interesting notes on the ASA’s history here. These mentions that, quite properly, the ASA operates under a chairman who has no connection with the advertising industry. I’ll come back to this in a moment.

So what did the ASA have to say in their letter? Well telling you is a bit of a problem because it’s all a terribly big secret. In fact, come to think of it, even telling you that I have received a letter from them would seem to be a terribly big secret, in their eyes at least. Just mentioning that there has been a letter I mean.  Perhaps I should really be pretending that none of this has ever happened.

Contributors to Harmless Sky who made complaints to the ASA may remember that we all received an acknowledgement from them which ended, ‘Please treat all correspondence as confidential until such time as a decision is published on our website’. This seemed a bit silly to me.

So far as I remember there were over 800 complaints to the ASA about the government adverts. Presumably each and every one of the complainants got the same letter, and this included the request for ‘confidentiality’. I’ve always believed that the only kind of secret that stays that way is one that you don’t share with anyone.

But of course such a request for confidentiality does beg a very obvious question; why is it being made?

I could think of no answer to that, so I thought little more about the matter. Normally, if someone wants to impart information on condition that it is confidential they seek your agreement first. Telling you something,and then saying that, by the way, ‘this is confidential’, is rather pointless, more particularly so when you are telling several hundred other people the same thing. And anyway, what possible justification could there be for trying to keep the very mundane information from the ASA that has appeared on this blog secret?

From a purely practical point of view, I could think of no sensible reason to make the request in the first place, or at least no reason that would reflect well on the ASA. Since I have been running this blog I have had dealings with a couple of proper regulators – Ofcom and The Information Commissioner who do have statutory powers – and neither of them have made such a request. Why should the ASA  do so?

The first requirement of a regulator is that the processes they employ in reaching decisions should be absolutely transparent, otherwise how does the public know that they are competent, impartial, and that they have applied the correct procedures and criteria in order to reach a equitable decision?  A secretive regulator is hardly likely to be a credible regulator.

In the end I decided that the ASA were probably just a bit self-important and unprofessional, and adjusted my expectations of what all those 800 complaints might achieve accordingly. That was until I received the letter that I mentioned at the beginning of this post:

YOUR COMPLAINT: ACT ON C02 TV AD (BEDTIME STORY)

It has come to our attention that sections of correspondence and reports of telephone calls with named ASA staff, including comments on their whereabouts, in relation to our ongoing investigation into the Government’s Act on C02 ads, have been posted online in the public domain.

Our letter of 27 November to complainants requested “Please treat all correspondence as confidential until such time as a decision is published on our website”. Sections of that letter have also been reproduced in the public domain.

It is standard practice for us to make this request in letter to the parties involved in our investigations and it extends also to the content of telephone conversations with ASA staff and e-mails sent during the course of the investigation. The reason for this is that correspondence between the ASA and complainants during the course of an investigation is personal communication, intended for the purpose of explaining what we are doing. In relation to the content of the investigation itself, advertisers frequently provide us with commercially confidential or otherwise sensitive information as part of their response to us and we need to respect that. Perhaps most importantly, the outcome of an investigation is not final until the ASA Council has come to a decision on a case and selective or incomplete references to personal communication could give a misleading impression about the progress and direction of the investigation.

We want to keep complainants informed and involved throughout the investigations process and so we would ask you to respect our process and to refrain from publishing material related to this investigation in the public domain whilst the case is ongoing. Once the ASA Council has reached a decision and our adjudication is in the public domain, there are no restrictions on discussion of that published document.

Just who on earth do the ASA think they are?

The ASA may be in a position to tell advertisers what they may or may not do or say, but they certainly do not have any authority to tell me what I should or should not allow to appearing on my blog.  The autocratic tone of this letter is grossly impertinent and much of what it says is absurd.

These are just a few points:

•  ‘ It has come to our attention … ‘. An officious prelude to a dressing-down?  Apart from being extremely discourteous this is not a smart way to start a letter.
• ‘ Correspondence between the ASA and complainants … is personal communication’. Rubbish! Unless I get an invitation to go clubbing from someone at the ASA. Otherwise there is nothing ‘personal’ about any communications I may have with the ASA concerning complaints that have been made to them.
• ‘Advertisers frequently provide us with commercially confidential or otherwise sensitive information…’.  This is fatuous.  We are dealing with the actions of a government department. Anything to do with this matter is clearly in the public domain, and it is not part of the ASA’s function, so far as I am aware, to protect the government from embarrassment.
• ‘Perhaps most importantly, the outcome of an investigation is not final until the ASA Council has come to a decision on a case and selective or incomplete references to personal communication could give a misleading impression about the progress and direction of the investigation.’ We all have to cope with selective of incomplete references from time to time. For that reason the ASA should be very careful what it says. Trying to close down discussion on a blog is probably not the most sensible way to deal with this problem.
• ‘Once the ASA Council has reached a decision and our adjudication is in the public domain, there are no restrictions on discussion of that published document.’ Precisely what restrictions does the ASA think it can impose on discussion of its activities now or at any other time?

There are a couple of other points that are worth making.

This case does not involve an ‘advertiser’ of the kind that the ASA are used to dealing with. No doubt they demonstrate great acumen when assessing whether the claims made for a ‘revolutionary’ new brand of razor blades are justified, or when deciding if a picture of Sophie Dahl really is just a little too provocative to appear on billboards. But complaints about these global warming ads are a very different matter. They concern a possible misuse of television advertising by government in order to mislead the public by disseminating propaganda for political purposes. This is not a case of merely being a little bit economical with the truth in order to boost sales of some wonderful new product, or to attract attention by perpetrating an outrage to public decency. This raises the question of whether the ASA, a self-appointed industry watchdog, is competent to deal adequately with a case where it is the government that is in the dock?

As I mentioned above, the ASA is, very correctly, led by a chairman who is independent of the advertising industry. At the moment, that post is held by Lord (Chris) Smith of Finsbury, an ex-cabinet minister and Labour peer. He also happens to be chairman of the Environment Agency, an organisation that has done much to spread the AGW message. I am certainly not suggesting that Lord Smith would attempt to sway an ASA decision for political or doctrinaire reasons, but neither is it possible to consider that he is ‘independent’ in relation the issues under consideration in this particular matter.

Should the ASA’s final adjudication on the ads seem to be in error, then there is an appeal procedure:

In exceptional circumstances the ASA Council can be asked to reconsider its adjudication, including a Council decision not to investigate a complaint. Requests for review are considered by the Independent Reviewer of ASA adjudications, Sir John Caines, KCB, a former Whitehall Permanent Secretary.

http://www.asa.org.uk/About-ASA/Independent-Reviewer.aspx

Once again, this may be suitable when dealing with run-of-the-mill commercial adverts. However it is questionable whether a former high-ranking civil servant should have the final say in a case where an adverse finding would cause extreme embarrassment not just to a government department, but to the government as a whole, in the run-up to a general election.

Given the issues that are at stake it would seem that the ASA may not be fit for purpose in this case. A heavy handed and ill-considered attempt to ensure that this matter, which has generated considerable public interest, is considered behind closed doors does not inspire confidence.

Attempting to close down discussion on a blog is not only unwise but also completely unacceptable. I have now written to the ASA drawing their attention to this post and inviting them to comment on it. I have also requested an update on when they expect to complete their investigation.