New ASA prioritisation principles focus on harm and detriment

The Advertising Standards Authority (ASA) published its response on 27 February 2015 to a consultation carried out to determine principles of prioritisation for the allocation of its regulatory resources. The response introduces its new prioritisation principles in line with the ASA’s five year strategy (2014-2018), specifically its reported commitment to ‘Having more Impact’ and ‘Being more Proactive’.

The principles are designed to allow the ASA to allocate resources to prioritised activities or complaints, with consideration of:

• what harm or detriment has occurred, particularly the extent to which consumers or society are experiencing, or are likely to experience, serious or widespread detriment, and whether an ad undermines the rules of fair competition for advertisers;
• the likely risk of action versus inaction to consumers, advertisers or wider society, with consideration of the risk of undermining consumer or industry confidence in the ASA or wider regulatory system;
• the likely impact of the ASA’s intervention or non-intervention; and
• what resources would be proportionate to the problem being dealt with, considering the complexities involved in delivering a successful result and whether the ASA is the appropriate body to act: alone, in partnership, or at all.

The Consultation and Concerns

The new principles result from both the November 2014 consultation and discussions with consumer and business groups and other regulators. Responses to the consultation focused on the ASA’s decision to introduce such principles and whether they were appropriate, and how the principles would be implemented.

As a result of respondents’ broad support for the introduction of formal prioritisation principles and agreement that they were logical and understandable, the ASA decided to retain the principles developed in their original form. However, many respondents sought clarification on their practical application, in particular to ensure decisions about allocation of resources would be transparent and consistent. The ASA has confirmed it will consider these responses as it conducts its internal process determining how to integrate the principles into its regulatory activity. It also stated that it will publish information and guidance prior to any significant policy change with the aim of making the process transparent.

Respondents further referred to the importance of a risk-based, flexible attitude to prioritisation and enforcement actions. The ASA has in turn made clear that the new principles are not exhaustive and are intended to be used flexibly, with decisions made on a case-by-case basis and taking on board all appropriate factors.

The Impact

Reflecting on these responses, the ASA have sought to identify suitable prioritisation principles to help guide its work, and will now review how to implement them gradually to introduce new ways of working. Advertisement adjudications will continue to be made according to the UK Advertising Codes, but the principles are meant to provide a “proactive and targeted” approach to dealing with the more than 30,000 complaints received each year. The aim is to ensure the ASA is more efficient and has the greatest impact possible, but the difficulty for advertisers is that the new principles will be unlikely to provide further certainty, notwithstanding the aim of transparency. The Codes’ application in spirit as well as letter already makes for a somewhat uncertain regulatory environment and, within this context, it is unclear whether the new principles will provide clarity or further ambiguity.

Indeed, even though it remains to be seen how the ASA will implement the principles, it is clear that they are not all-encompassing. It would appear that the ASA is planning to allocate less time and resources to tackling ads where it considers there is little harm or risk likely to be caused by inaction. However, it is unclear how the ASA will quantify harm. With little substantive guidance on how the principles will be implemented and this not being the subject of the consultation, the amount left to interpretation has understandably caused concern to advertisers and businesses. They are likely to see the principles as a further source of uncertainty as the ASA determines when and how they will be applied.

This uncertainty will make the situation difficult for advertisers and further emphasises the need to think carefully of the consequences of the claims being made. Further, the ASA will be under pressure to explain how it will implement the principles in a transparent and fair way.