Clearcast TV pre-clearance decisions not subject to judicial review: Diomed Direct Ltd v Clearcast Ltd

Clearcast reviews UK TV ads before broadcast to check their compliance with the BCAP Code. If Clearcast doesn’t pass an ad it doesn’t get broadcast. Clearcast is a private limited company owned by and acting on behalf of a number of major broadcasters. It is not a regulatory body such as the Advertising Standards Authority (ASA).

Diomed sought Clearcast clearance for its proposed TV ad which included a claim about the effects of a medical device. Clearcast asked Diomed for substantiation to support the claim. Diomed argued that because their product had received EC certification they should be able to include the claim in TV advertising without further substantiation.

Diomed applied to the court for judicial review of Clearcast’s decision on a number of grounds all of which were unsuccessful. Of most general significance was the court’s finding that pre-clearance decisions of Clearcast are not amenable to judicial review.

The court found that Clearcast does not exercise functions of a public nature. Broadcasters make private arrangements through Clearcast to secure public law objectives (compliance with the BCAP Code) but this isn’t sufficient. Clearcast assists with the broadcasters’ functions: if a broadcaster decided not to approve an advertisement because of a risk of an adverse finding by the ASA, that decision would not be amenable to judicial review.

Decisions of the ASA remain subject to judicial review although successful applications for judicial review of the ASA’s decisions are unusual.


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