My Lords, the Government support the system of co-regulation for broadcast and self-regulation for non-broadcast advertising enforced by the Advertising Standards Authority. Overall, we believe that this regulatory system has worked well for both consumers and advertisers, and I support the Government’s assessment in the 2013 digital communications policy paper that it is an exemplar of successful self-regulation.
My Lords, I declare an interest as a partly successful recent complainant. The Minister will know that the ASA is a self-regulating body and is funded at one remove by the industry. In those circumstances, does she think that it is acceptable for such a body not to have to observe the rules of natural justice when hearing complaints? There is no obligation to share material with both sides. The authority sometimes fails to seek expertise and evidence when necessary, fails to give adequate reasons for its judgments, fails to follow precedents and makes its own appointments. What assurance can she give us that the governance of this body will be brought into line with that of other complaints-handling bodies? Should it not be on a statutory basis, ensuring that justice is done to both sides?
My Lords, the system has been proven to work well for more than 50 years, and of course the ASA Council is chaired by the noble Lord, Lord Smith of Finsbury, who after a review in 2014 put in place a new strategy aimed at being more proactive and efficient. I think that that has improved the speed of response and customer satisfaction. ASA rulings are subject to review by the Independent Reviewer of the Rulings of the ASA Council, and if an interested party remains unhappy, they have recourse to the courts through judicial review. There are pluses and minuses to this type of system, but I believe that the advantages outweigh the disadvantages.
My Lords, the ASA can engage external expert advice on a case-by-case basis. I think that it is on occasions when claims are capable of objective assessment and the evidence provided would merit such external expertise. Of course, the ASA itself has a bench of experts, but it is possible for it to bring in extra scientific expertise if it needs to do so, and no doubt advisers on political issues, although the make-up of the council probably means that it is quite experienced in these matters.
My Lords, as chairman of the ASA, can I ask the Minister if she agrees that, taken as a whole, the ASA’s work is a good and effective example of self-regulation and co-regulation? Last year the authority dealt with 37,000 complaints about 17,000 advertisements, and its work resulted in almost 3,500 ads being changed or withdrawn. While of course we will never get absolutely everything right, we have a strong and independent review process in place which in fact worked very effectively in relation to the case brought by the noble Baroness herself.
I am very grateful to the noble Lord for setting out these facts so clearly and succinctly. I would add that the flexibility of the ASA, which he has not mentioned, is a big advantage—the way it was able to jump in in the 1990s and take on online ads and look at those showed that. It also ensures a strong industry stake in maintaining the system, ensuring high levels of consumer trust and, of course, good enforcement, because the industry is involved in making this a success.
My Lords, the Minister has given details about what has been done. Can she tell us that they are satisfied that the ASA meets the criteria of the EU Directive 2006/114 which, as I am sure the Minister knows, requires the UK to provide,
“effective means … to combat misleading advertising”,
with recourse to the courts. Despite the eloquent responses of other noble Lords, the ASA is not a court.
Yes, my Lords, EU Directive 2006/114 concerns misleading and comparative advertising to traders in the UK, and by agreement the ASA administers the UK advertising codes. The system works well. It is a good, collaborative arrangement, with good back-up.
Does the Minister agree that one of the problems here is that the ASA is called the Advertising Standards Authority, when it is not in fact a statutory body at all. As we have heard, the ASA is a body funded by the advertising industry, which rules on complaints against the advertising industry. I am a great fan of the noble Lord, Lord Smith, but surely not even he can change the fact that self-regulation rarely works. Does not its lack of statutory independence fatally undermine whatever credibility the ASA may have?
My Lords, I cannot agree with the noble Baroness. The system works well for all the reasons that the noble Lord, Lord Smith, articulated. We should stick with it and make sure that it continues to improve—which, I understand, is exactly what the Council is trying to do.
I wonder whether my noble friend would agree—and certainly the noble Lord who is in charge—that gambling is still a big problem. As someone who could easily be on the verge of becoming a compulsive gambler in the middle of the tennis season, I point out that there is an advertisement that says, “If you know whether the person who won the first set is going to win the match, press the button. It’s a free vote and we will pay you if you win”. I can only confess that my finger is starting to itch when they do that. Other people must be in the same position; they must go the whole hog and stay there, losing more money than they possibly can afford. Please would they pay special attention to the gambling advertisements?
My Lords, the noble Baroness is right. Of course, this is not a matter for the ASA alone. Regulations governing gambling, marketing and advertising are shared with Ofcom and the Gambling Commission. The Government are committed to ensuring that people, particularly the young and vulnerable, continue to be protected from being harmed or exploited by gambling—and also, of course, people in the later stages of life.