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Johnson’s Legacy Must Be The Regulation Of Political Advertising – Advertising, Marketing & Branding


Today, Boris Johnson’s time as prime minister will
effectively draw to a close with the announcement of his successor,
either Rishi Sunak or Liz Truss. While friends and foes may argue
about his ‘achievements’, one thing is certain: his legacy
should be the introduction of effective regulation of political
advertising, including election advertising.

There was a strange, almost throw away aside in the
government’s Online Advertising Programme consultation when it
was published in June this year. Just two short sentences were
devoted to this important subject: “Political advertising -
this has not been subject to advertising Codes since 1999. The
government believes that having political advertising vetted or
censored would have a chilling effect on free speech.” In
effect, the government seemed to be saying ‘we’ve been free
to mislead you without any repercussions for the last 20 years, and
we’re not going to change that now.’

It’s a bizarre state of affairs. There are whole sectors of
economic activity which are illegal to advertise, such as tobacco,
and others which are subject to strict legal controls, such as
financial services and HFSS food. Generally speaking, advertising
is subject to legal controls, such the Consumer Protection
Regulations, with criminal sanctions attached. For example, Tesco
were fined £300,000 by Birmingham Magistrates Court for
continuing to claim that their strawberries were half price, when
in fact their strawberries had been at that price for so long, that
the half price was effectively the normal price.

The law is also supplemented by the self-regulatory regime in
the shape of the UK Codes of Advertising, administered by the
Advertising Standards Authority (ASA). Any misleading, exaggerated,
or unsubstantiated claim will be condemned by the ASA, with the
burden of proof being on the advertiser, i.e. the defendant –
rather than on the prosecution, i.e. the ASA itself. Just this
week, for example, the claim ‘kinder to the planet’ in an
advertisement for Persil was condemned by the ASA because basis for
the claim had not been made sufficiently clear and because the
claim had not been substantiated based on the full life cycle of
the product. These are very demanding and exacting standards, but
the advertiser, Unilever, fully engaged in the process of the
investigation. They had already submitted to the pre-vetting of
their advertisement by obtaining clearance from Clearcast.
Furthermore, they then submitted to the subsequent investigation by
the ASA and no doubt will now abide by the ASA’s adjudication,
regardless of how flawed it may be. At no point has Unilever said
that the processes of either Clearcast or the ASA will have a
chilling effect on free speech. Instead, they have accepted their
responsibilities and the jurisdiction of the ASA. (As it happens, I
don’t agree with the ASA’s decision on this matter, as I
wrote here.)

But is ‘political’ advertising different from
‘commercial’ advertising? Yes, and that’s why we have a
wide-ranging ban on all forms of political advertising on UK
television. We don’t want political discourse to be subverted
by those with the deepest pockets. But this also means that
political issues, with a small ‘p’, are banned from
advertising on TV as well. Many years ago, I tried to help Make
Poverty History obtain approval from Clearcast for their ads that
argued that the debts of less development countries should be
written off. Clearcast were sympathetic, but then Ofcom weighed in
and banned the ads on the basis that they were political, because
they were trying to influence government policy. More recently,
Clearcast found itself having to reluctantly deny approval for ads
from Iceland, the supermarket, promoting palm-oil free products to
help protect the habitat of Orangutans because the same animated
film had previously been used by Greenpeace, an organisation with
‘political’ objectives.

So ordinary commercial advertising is heavily regulated, as are
all forms of ‘political’ advertising on television, for
both Political (with a capital P) parties and political causes
(with a small p). It is true, however, that in 1999 the CAP Code,
which governs non-broadcast advertising, was amended to remove from
its scope “any advertising whose principal function is to
influence voters in a local, regional, national or international
election or referendum”, regardless of when it is published or
distributed. This change was precipitated by the furore around the
rather silly ‘demon eyes’ advertisement published by The
Conservative Party in the run up to the 1997 General Election.

1227388a.jpg

165 people complained to the ASA that depiction of Tony Blair
with demon eyes broke the CAP Code’s rule against portraying
living individuals in an adverse or offensive way without
permission. While the ASA agreed with the complainants, the process
was a bruising one which risked dragging the ASA into an unwelcome
and unwinnable political debate. Furthermore, while responsible
advertisers like Unilever submit to the regulatory process even
when they disagree with the outcome, political parties cannot be
relied upon with the same degree of self-restraint and
maturity.

However, hard cases make bad law. The demon eyes ad was a
typical election advertisement: equivalent to ‘puffery’ in
a commercial context. ‘New Labour. New Danger’ combined
with a picture of Tony Blair with demon eyes does not contain a
claim that is capable of objective substantiation. If it was a
commercial advertisement, the ASA would say that it is ‘mere
puff’, not requiring substantiation.

It is also doubtful that this traditional kind of knockabout
political advertisement has every had a significant impact on the
outcome of a general election. Somebody somewhere might have
decided not to vote for William Hague, despite their initial
inclination to do so, once they’d seen the Labour Party’s
ad featuring his portrait, with Margaret Thatcher’s coiffed
hair superimposed. But it seems unlikely. And presumably the
follicly challenged Mr Hague was delighted by the image of himself
with a full head of hair.

1227388b.jpg

In other circumstances, however, political advertising is more
likely to make a significant difference to the outcome of a vote.
The paradigm example is a referendum, such as the Brexit referendum
of 2016, where people have to make a binary choice between
‘yes’ and ‘no’ on a particular issue.

And when a political advertisement around a referendum makes a
factual claim which is not mere puff, but one which is capable of
objective substantiation, then the departure from the requirements
of the CAP Code presents a major problem. Obviously I am referring
to the infamous Boris bus and its claim, “We send the EU
£350 million a week – let’s fund our NHS instead
– Vote Leave – Let’s take back control.”

It’s a strong claim, not mere puffery, which is capable of
objective substantiation. But it’s not just misleading,
it’s false. While the referendum campaign was still running,
Sir Andrew Dilnot, Chair of the UK Statistics Authority said they
were disappointed by the continued use of the claim because it
ignored the application of the UK’s rebate. He said, “The
continued use of a gross figure in contexts that imply it is a net
figure is misleading and undermines trust in official
statistics.” In other words, it was an overclaim of exactly
the kind that the ASA would routinely condemn in a commercial
advertisement.

1227388c.jpg

To make matters worse, Boris Johnson knew that the figure was
misleading, if not false, and he did not care. You can watch him
dissembling in an interview with ITV’s Tom Bradby here.

But the referendum is over, so perhaps it no longer matters?
Remainers should ‘get over it’ and stop re-moaning. Well,
no. It does matter, because it is not unlikely that there will be
further referenda in the foreseeable future. A second referendum on
independence for Scotland remains a possibility. If the post-Brexit
status of Northern Ireland cannot be resolved, then presumably a
referendum on a united Ireland is also possibility. Writing in The
Times on 8th August, columnist Clare Foges even raises the
possibility of a referendum on the target of achieving Net Zero by
2050. She argues that this is the latest objective of Brexiteers
like Nigel Farage, who has launched a campaign called ‘Vote
Power Not Poverty’. His fellow traveller, Steve Baker MP, has
migrated from the European Research Group of Spartan Brexiteers to
chair the Net Zero Scrutiny Group. Both men have shown that a group
that starts on the political fringe can end up usurping
conventional opinion.

This raises a rather terrifying prospect. While the ASA holds
advertisers like Unilever to account for alleged overclaims for
their detergent, politicians will be able to lie with impunity in
advertising around a campaign for abandoning the net zero
target.

In fact, Boris Johnson used the lie on the bus to win the Brexit
referendum and then propel himself to No.10 Downing Street. This is
in stark contrast to what has happened when he has lied in other
contexts and there has been a price to pay. This history of lies
and consequences is set out this video produced by Led by Donkeys. In 1988,
he was sacked by Max Hastings, editor of The Times for fabricating
a quote for his first front page story. In 2004, he was sacked by
Michael Howard, the leader of the Conservative Party, from his role
as Vice-Chairman of the party and Shadow Arts Minister for lying
about whether he had an affair with a woman who had become pregnant
and then had an abortion. In 2019, he had to apologise to the Queen
because having obtained her approval for Parliament to be
prorogued, the Supreme Court unanimously ruled that his decision
was unlawful. Finally, in 2022, after the lies of Partygate and
Pinchergate had been exposed, Johnson had to resign as Prime
Minister after 40% of his own MPs voted against a Confidence Motion
in his leadership, followed by the unprecedented resignation of 57
cabinet ministers, junior ministers and other employees of his
government.

So while truth in advertising matters, apparently in political
advertising the freedom to lie is more important and uniquely
rewarding, yet risk free. The most important constitutional
decision of my lifetime, the decision to leave the European Union,
was partly the result of political advertising that was not merely
misleading, but false. And the person who did more to propagate
that falsehood than anyone else, Boris Johnson, also benefitted
from it more than anyone else, using it as a platform to secure the
premiership. It was not only the most productive lie that he ever
told, but it was also one that was free of any negative
consequences.

If this lacuna in the regulation of political advertising is not
filled, then we risk having our democratic processes subverted
again in future. The group Reform Political Advertising argue that
election advertising should be brought back within the remit of the
CAP Code. They acknowledge, however, that the ASA does not support
that outcome, not least because the ASA knows that self-regulation
is ultimately based on consent, and there is not much future in
trying to regulate political parties that do not want to be
regulated. In fact, the ASA is on the record as saying that political
advertising should be regulated, just not by them.

In New Zealand, however, the NZ Advertising Standards Authority
does regulate political advertising. You can watch a brief
explanation of how the system works by their CEO, Hilary Souter, here. In essence, there are 3 principles for
Truthful Presentation in Advocacy Advertising:

Advocacy advertising must clearly state the identity and
position of the advertiser.

Opinion in support of the advertiser’s position must be
clearly distinguishable from factual information.

Factual information must be able to be substantiated.

It would appear that an application of these principles would
mean that silly, “puffery”, knockabout political ads like
‘demon eyes’ could continue to run without challenge but
claims like ‘£350m for the NHS’ would need to be
substantiated. Which begs the question: If they can do it in New
Zealand – and they have done for years – why can’t
we do it here? It may be that the ASA would need a separate
committee to carry out this work in a timely fashion, but there
must be a better way than the present free for all.

Johnson’s formal departure from office will come tomorrow,
Tuesday 6th September, providing yet another example of Enoch
Powell’s famous aphorism from his biography of Joseph
Chamberlain, “All political lives, unless they are cut off in
midstream at a happy juncture, end in failure, because that is the
nature of politics and of human affairs.” And Powell knew a
thing or two about political careers ending in failure, so
presumably he was speaking from personal experience.

But the person who seems to have the measure of Boris Johnson at
a very early age was his school master at Eton, who famously wrote
“I think he honestly believes that it is churlish of us not to
regard him as an exception, one who should be free of the network
of obligation that binds everyone else.”

Mr Johnson clearly believes that he should be free from the
obligation to be truthful in advertising, an obligation that binds
everyone else. And it is for precisely that reason that he –
and all other politicians – should not be free of it. They
too should be required to substantiate their factual claims.

We need reform of political advertising, and we need it now,
before the next referendum that shapes the future of this country
for decades to come.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.





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