We’ve just experienced a bitterly fought EU referendum involving highly divisive advertising campaigns by both Leave and Remain groups. Be it Vote Leave’s claim to fund the NHS instead of sending £350 million a week to the EU, its ‘Turkey joining the EU’ poster or the Treasury’s mailshot claiming UK families would be £4,300 a year worse off if Britain leaves the EU, there’s been controversy aplenty.

Had they been ads for products or services by commercial companies, we at the Advertising Standards Authority would have performed our usual role holding the groups that ran them to account. Checking their ads complied with the rules in the UK Advertising Codes. Confirming they were legal, decent, honest and truthful.

We’ve been making sure ads are responsible for nearly 55 years. But we’ve never applied the Codes in full to political advertising, defined as ads whose principal function is to influence voters in local, regional, national or international elections or referendums.

Given the over 350 complaints we’ve just received from people about referendum-related political ads, media commentators talking about a ‘regulatory gap’ and online petitions calling for the establishment of an ASA-like body to monitor political campaigns (161,000 signatures and counting…), there’s clearly a popular call for regulating political advertising. But there are good reasons why – at the current time - it cannot be the ASA that does the job.

Political advertising on broadcast media has always been banned, except for tightly controlled party political broadcasts. However, up until 1999 non-broadcast political advertising was subject to some of the rules in the Advertising Code. For example the rule prohibiting the adverse portrayal of public figures without their permission, which led the ASA to ban the Conservative Party’s New Labour, New Danger ad featuring Tony Blair with demon eyes, which ran in the lead-up to the 1997 General Election. But only some of the rules: even then political ads were exempt from the Code’s rules that require all other advertisers to tell the truth.

That part-in/part-out approach was confusing and unsustainable. People didn’t understand why we would stop a party from depicting Tony Blair in a sinister and dishonest way but we would do nothing to stop parties from misleading the public.

At the first opportunity following the 1997 election, the Committee of Advertising Practice – the industry part of our system with responsibility for setting the rules - decided to exclude political advertising in its entirety from the ASA’s remit.

It did so for a combination of reasons, some related to the ‘special case’ nature of political advertising. The short timeframes of elections made it likely ASA investigations would still be ongoing after the election had been held. The 1998 Human Rights Act raised concerns about restraining the freedom of political speech around democratic elections and referendums; to quote then ASA Chairmen Lord (Bill) Rodgers of Quarry Bank: “the free-flow of argument in the cut-and-thrust of open debate is the best antidote to political advertising that misleads or offends”. And last but by no means least, the Conservative and Labour parties did not agree – despite CAP encouragement - to bring their political advertising wholly within the scope of the Code.

We did not simply cut political advertising adrift. In 1998, the ASA referred the matter to the Neill Committee on Standards in Public Life, which recommended that political parties establish a code of best practice in partnership with the advertising industry. That didn’t happen. And nor did the Electoral Commission’s 2003 conclusion that the ASA should not be responsible for regulating election advertising prompt the parties to set up their own system.

So here we are today with our curious status quo.

...the majority of the main political

parties have said they don’t want

to subject themselves to the

standards they expect of companies.

 

Guy Parker, ASA Chief Executive

On the one hand, the overwhelming majority of big commercial companies support the ASA. They might fight like tigers if we’re ruling against one of their specific ads, but our regulation of them without fear or favour co-exists more-or-less happily with their general buy-in of the system.

On the other, the majority of the main political parties have said they don’t want to subject themselves to the standards they expect of companies. There are good practical reasons for the ASA not playing a role, but the clincher is this: for a self-/co-regulatory system like ours to stand a chance of working for political advertising, the starting point would have to be the clear support of the majority of political players.

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Guy became Chief Executive of the ASA, the UK regulator of ads in all media, in 2009.  Responsible for executing the ASA’s strategy to make UK ads responsible, he oversees all functions of the ASA system. Read more