Tipping the regulatory scales – When offence and free speech collide


INSIGHT
Published
Jun 6th '24
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We’re living through a time of polarisation in our cultural, political and public discourse. ‘Wokeness’, gender identity, geo-politics, immigration, climate change – all themes and issues that tend to divide rather than unify opinion. 

 

We all hold views, opinions and beliefs. Some can be highly personal and strongly held. They can be emotive and, by extension, potentially divisive. Subject to legal limitations, we may seek to express publicly our views on those topics. That’s all part of a healthy democratic society.

 

While we can, to an extent, exercise control over whose opinions and views we see, listen, or give credence to, what happens when a viewpoint to which we are strongly opposed arrives in our lives uninvited? Specifically, what happens when it’s an advertiser expressing a view that we find offensive or unpalatable?

 

At the ASA we often have to grapple with complex debates and competing viewpoints brought to the fore by ads. It can be a challenge. We live in a society that values and legally protects freedom of expression. Our rules and decision making must and do reflect that. But freedom of expression is not an absolute right; it can be limited or restricted in certain circumstances.

 

So how do we meet that challenge? A starting point is establishing the difference between opinion and fact.

 

The advertising rules allow ads to contain statements of fact or opinion. But there is a difference between the two. In making an objective claim, the ASA expects an advertiser to hold evidence to support it. If and where that evidence is lacking, we’ll intervene on the grounds that the ad is likely to mislead. Advertisers do not have a right to make misleading claims.

 

In considering matters of opinion, we give more leeway to advertisers, particularly in relation to non-commercial advertising. In particular, there is careful thinking to be done around ads promoting a ‘cause or idea’. Think campaign or pressure groups, charities and bodies promoting political causes. The law provides us all with increased protection to express our views on matters of public debate, particularly where the views are making a sober contribution to it and are not expressed in a way that is gratuitously offensive.

 

The ASA will consider complaints about an ad for a cause and idea in the context of the advertiser’s right to freedom of expression. Importantly though, having that freedom does not give advertisers a blank cheque to say anything they want. The rules on offence and social responsibility still apply.

 

In arriving at a decision, we take into account the medium in which the ad appears, the audience and its likely response to the ad and the nature of the product or issue at hand. Crucially, claims for causes and ideas that are in non-paid for space such as an advertiser’s own website or on a leaflet, are not covered by our advertising rules (as long as the advertisers aren’t directly requesting donations as part of their own fund-raising activities).

 

Advertisers, then, are free to promote a cause or idea and give their opinion in ads, provided that they do not imply expressions of opinion are objective claims or that their expressions of opinion are not likely to cause serious or widespread offence.

 

Where an ad is centred on a contentious issue, we recognise that one way or another, wherever we draw the line, it will likely upset those on the other side of the debate.

 

All of this can be further complicated because, depending on the views held by the person seeing an ad, some opinions can be interpreted or appear to be presented as fact or will, simply always be offensive no matter how carefully they’re expressed.

Taking two separate highly contentious issues as examples. The conflict in the Middle East. And the debates around abortion rights. Views on those differ and they are strongly held. Where statements, themes or images around those topics are used in ads, they can prompt deep-seated reactions. An individual or group of people vehemently opposed to what an advertiser has to say will, reasonably, voice their concerns. That can include lodging complaints with us.

 

Previous decisions give us lots of guidance in how we decide what is in remit and when to take the serious action to remove an ad for a cause or idea on the grounds of it causing serious or widespread offence. Despite how objectionable certain views expressed in ads may be to some groups of people, in many instances, an advertiser’s right to freedom of expression trumps the offence that is undoubtedly caused.

 

Why is this the case? It goes back to the fact that the Advertising Codes and how we apply the rules must reflect the law. It can create a difficult tension between serious or widespread offence being caused to some groups of people who don’t like seeing or hearing a particular view in an ad with the right of the party holding that view to express it as part of their democratic right in a free society.

 

As complaints to the ASA and our decisions around ads for causes and ideas often show, reasonable minds can and do differ on where the line should be drawn. On occasion, ads provoke strong emotions and, regrettably, even anger. In all of this, we have to ensure that we take decisions within the boundaries of the laws surrounding freedom of expression. It’s a delicate balancing act and one where not everyone can or will agree all the time.

 

Source: ASA

 

About ASA

The Advertising Standards Authority (ASA) is the UK’s independent advertising regulator. The ASA makes sure ads across UK media stick to the advertising rules (the Advertising Codes).

 

 

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