ASA fends off human rights attack

The Advertising Standards Authority has successfully resisted its first attack by an advertiser on human rights grounds.  Although the Advertising Code is a self-regulatory scheme rather than a statutory code, it is still “prescribed by law”.  Restrictions on advertisers’ freedom of speech may therefore be justifiable under Article 10(2) of the European Convention on Human Rights.

A German company, Matthias Rath, published a leaflet claiming amongst other things that heart disease and high blood pressure could be prevented by vitamins.  They also claimed that the British Government had been forced by their previous publicity to withdraw planned legislation which would “forbid forever the dissemination of natural health information in relation to vitamins and other natural therapies.”

A local Health Authority complained to the ASA questioning these claims.  The ASA wrote to the advertiser requesting English translations of testimonials referred to in the leaflet, along with other substantiation.  The advertiser failed to reply and the ASA wrote again giving the advertiser a deadline for its response.  When the deadline came the ASA sent the advertiser its draft adjudication stating that comments on its factual accuracy would be entertained if received within seven days.  Finally, two weeks later, the advertiser’s solicitors told the ASA they wanted to comment on the accuracy of the report.

The advertiser was too late.  The ASA responded that the ASA Council had already made its adjudication which would be published in six weeks time.  The advertiser’s solicitors then wrote to request a review of the adjudication, finally enclosing the testimonials and other information requested by the ASA.  The Independent Reviewer of the ASA responded by refusing to reconsider the adjudication.

The advertiser’s solicitors told the ASA they were going to apply to the High Court for judicial review of the adjudication.  They asked the ASA not to publish the adjudication pending the court application.  However, even when asked for information as to the basis of the review, the advertiser’s solicitors appear not to have made their grounds clear.

The advertiser applied to the court for judicial review of the ASA’s decision to publish the adjudication and of the Independent Reviewer’s decision not to reconsider the adjudication.  It claimed that publication of the adjudication would interfere with its freedom of speech under Article 10(1) of the ECHR.

In an important judgment which examined the legal basis of the ASA’s curbs on commercial freedom of speech, Mr Justice Turner strongly endorsed the ASA’s position.  He refused to grant an injunction preventing the ASA from publishing its decision and found no reason to interfere with the Independent Reviewer’s discretionary decision not to reconsider the ASA’s decision.

This is not the first time an advertiser has used the courts to try to prevent publication of an adverse ASA decision.  The first attempt in 1992 by Vernons Organisation failed.  Direct Line Financial Services (represented by the Simkins Partnership!) succeeded in 1997 when Mr Justice Popplewell disagreed with the Vernons decision.  In the present case the judge favoured the Vernons approach on the basis that the advertiser was relying on public rather than private law.  Advertisers who wish to obtain an injunction preventing publication of an ASA decision should take note of this.  The following lessons can be learned from the Matthias Rath decision:

  1. Make sure you respond to ASA complaints within the deadlines the ASA sets.
  2. Give full details of the grounds on which you intend to apply for an injunction.
  3. Move as quickly as possible.
  4. Avoid basing your claim on human rights grounds.

Other points in the judgment

  1. The judge clearly considered that the ASA was a “public authority” for the purposes of the Human Rights Act.
  2. He also considered that the Advertising Code was “reasonably necessary in a democratic society.”
  3. ASA decisions on advertisements concerning health matters may be “necessary for the protection of health.”
  4. The public interest is served by the publication of the ASA monthly report.

The ASA’s Independent Reviewer does not necessarily have to give detailed reasons for refusing to reconsider an adjudication.  He has a discretion whether to review an ASA decision in the light of new evidence.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.