Injuncting the regulators: Debt Free Direct v ASA

The Advertising Standards Authority (ASA) has again successfully fended off an attempt by an advertiser to prevent publication of an adverse adjudication by means of an injunction.

The ASA last month upheld a complaint against a TV commercial for Debt Free Direct (“the claimant”) whom it then notified in the usual way that it proposed to publish its adjudication.

The claimant felt that the adjudication and the process by which it was made were flawed. Through its solicitors, the claimant immediately demanded that the ASA withhold publication of the adjudication pending a review. The claimant maintained that publication of the adjudication would be likely to have significant adverse consequences for its business because the complaint implied that there was an element of deception in the commercial and there was a risk that the claimant’s reputation would be damaged.

Following a decision by the Director General of the ASA not to withhold publication the claimant applied to the High Court for judicial review of the ASA’s adjudication and for an interim injunction preventing publication in the meantime. An injunction was granted initially for a period of a few days to enable the claimant to come back to court and argue its case at a full hearing at which the ASA would also be represented. That second hearing took place on 15 May before Mr Justice Sullivan, who in no uncertain terms dismissed the claimant’s application for the injunction to be continued, refused the claimant permission to apply for judicial review and ordered the claimant to pay the ASA “indemnity” legal costs which he summarily assessed at £16,876.53.

This judgment is the latest intervention in a “judicial dispute” dating back to the case of R v Advertising Standards Authority ex parte Direct Line Financial Services Ltd in 1997. Mr Justice Popplewell, in granting Direct Line an injunction to prevent publication by the ASA of an adverse adjudication, disagreed with the reasoning of the judge in an earlier case (R v Advertising Standards Authority ex parte Vernons Organisation Ltd) who had refused to order an injunction against the ASA. The judge in the Vernons case had drawn an analogy between preventing the ASA from publishing a decision and the general “no prior restraint” principle in libel cases (the rule inBonnard v Perryman). In the Direct Line case, Mr Justice Popplewell did not find this analogy “enormously helpful”.

In subsequent cases judges have declined to follow Direct Line and the Debt Free Direct case confirms that getting an injunction to prevent publication of an ASA adjudication will only be possible in exceptional circumstances: “There would, in my judgment, have to be the most compelling reasons to prohibit a public body which has embarked on a quasi judicial task of that kind from publishing its decision. For example, there might be circumstances where there was persuasive evidence that the public body had engaged in vendetta against the person the subject of the adjudication, and the adjudication was prompted by a deliberate desire to inflict damage on the reputation of the person criticised.

The judge described Debt Free Direct’s application for judicial review as “a blatant attempt to sidestep the complaints procedure.” The claimant should have applied for an Independent Review of the ASA’s adjudication, a regulatory process endorsed by the judge as “very far from being a rubber stamp”.

This latest decision can probably be expected to put to rest the judicial dispute about injuncting the ASA which flared up in Direct Line. It does leave the door ajar, but only in exceptional cases will the court be persuaded to intervene and in most cases aggrieved advertisers are likely to get short shrift if they rush to court for an injunction rather than following the ASA’s own review procedure.



ASA fends off human rights attack

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