- Advertising restrictions have become a key component in the ever-growing reach of the “nanny state”.
- Regulators appear to be attempting to reshape cultural and social attitudes to gender issues, the family, ethnicity and other concerns.
- This may be a portent of much tighter rules to come, which could threaten wider notions of free speech.
New research from the Institute of Economic Affairs warns we have sleepwalked into wide-ranging restrictions on advertising – and that it may not be long before there is pressure to ban certain types of expression and imagery in the arts, entertainment and politics.
Advertising – ‘commercial speech’ – is a form of communication which brings considerable benefits to the economy and society, and restrictions on it need clear justification. The UK spent over £22bn on advertising in 2019 and the industry generated £8bn of exports, making it the country’s second largest service exporter. It employs about half a million people in the UK, provides one third of TV revenue, two thirds of press revenue, and sponsors large numbers of social, cultural and sporting institutions.
Until the mid-1950s advertising was for the most part unregulated, subject only to laws relating to fraud and defamation which also affect other forms of speech. Since then, direct government restrictions have grown, and are still growing, in an attempt to serve public policy objectives of one kind or another.
Some of these interventions may achieve little gain at excessive cost, but at least they are discussed in Parliament. More worrying is the way in which “career regulators” have also developed ambitions to regulate more and more subjects, with these ambitions often being unclear to the general public.
Many restrictions come from what is ostensibly industry self-regulation by the Advertising Standards Authority (ASA), a private body which has morphed from concern with ensuring that advertising is ‘legal, decent, honest and truthful’ to a much wider and more problematic brief.
Today the ASA does not simply respond to complaints; it proactively seeks out breaches of its own rules. And it deliberately attempts to change public attitudes through forbidding representation of certain types of otherwise lawful behaviour which may give offence to some groups, or those who purport to speak on their account.
The ASA’s interpretation of ‘offence’ and ‘harm’ appears to differ from the view taken by others concerned with regulatory issues, such as Ofcom. As a consequence, creative expression which is permissible in television and films, YouTube, the theatre, books and newspapers is in effect forbidden in advertising – usually on the basis of a handful of complaints.
Its regulatory powers and influence are creeping into ever more areas of our society and culture – from new media to gender issues and ethnicity. It has already produced a number of rulings – for example in the case of a swimwear advert for Missguided and a Paddy Power newspaper advert featuring the boxer Floyd Mayweather – which override expensive prescreening processes through Clearcast, to produce decisions which are highly contestable. And, worryingly, it has recently also come out with a strong demand that political manifestos be regulated.
The ASA imposes its own attitudes on the advertising industry and thus on the general public. The ASA Council, which makes decisions on complaints, is a 13-member body, all of whom are highly educated and unrepresentative of the general public. A third work in the advertising industry; most of the rest are career workers in quangos and charities.
We should reflect much more carefully on the often unthinking way in which we have acquiesced in restrictions on commercial speech while permitting similar material under the banner of entertainment or intellectual free speech.
Professor Len Shackleton, Editorial and Research Fellow at the Institute of Economic Affairs and author of Ad Break: Why Curbs on Advertising Harm Free Speech, said:
“Advertising is an important industry and a major contributor to our economy. It makes it possible for firms to compete and offer a wide range of products and services to consumers.
“Restrictions on what advertisers can say to us act as a barrier to economic dynamism and need clear justification. Governments are increasingly using advertising bans to pursue paternalistic policies which treat people as incapable of making their own choices. Often these bans achieve little, but create some collateral damage. But at least they are known and understood by the public.
“More disturbingly, the Advertising Standards Authority has taken upon itself to restrict – on often spurious grounds of preventing ‘harm’ and ‘offence’ – the way in which people can be represented in adverts. This is an attempt by an unrepresentative body to manipulate the way people think and relate to each other and should be much more widely understood and discussed.”