Memorandum from the City of Westminster
Council
FLYPOSTING: A PERSPECTIVE FROM THE CITY OF
WESTMINSTER
1. INTRODUCTION
The City of Westminster is located in the Heart
of London and is the home to the Monarchy, the Government and
many Commonwealth High Commissions and foreign embassies. The
City includes within its boundaries some of London's most prestigious
landmarks and districts, including Westminster Abbey and the House
of Parliament. The City's diverse built environment blends contemporary
with period architecture. Within its 2,204 hectares (8.51 square
miles) Westminster takes in Regent's Park to the north, Hyde Park
to the west, and Covent Garden to the east. To the south it follows
the River Thames.
It has a residential population of over 190,000.
With around 500,000 working in the City, Westminster is also home
to a large business sector ranging from the international headquarters
of many multi-national organisations to a vibrant small business
community. Tourism and the retail sector are significant sources
of employment and 500,000 visitors come to the City each day.
The City Council is responsible for a wide range
of services including refuse collection and disposal and street
cleaning. Our street cleaning service is focused on the whole
street environment from litter, dumped waste to graffiti and flyposting.
We are very much a showcase for Britain and
a tempting location for those who wish to advertise their wares
both through legitimate and illegitimate means.
In 2003 we had logged 2,032 cases of flyposting,
covering an area of 5,313.4 square metres. This was an increase
of 27% over the previous year.
2. THE ISSUE
A SUMMARY
2.1 The current approach to dealing with
flyposting isn't working, and isn't likely to work in the future.
In order to make any significant impact on the businesses involved
in the industry, it will be necessary either to increase greatly
the penalties for the offence, or to bring company Directors to
account using the powers and pressures to which they are exposed
under the Companies Acts.
3. CURRENT POSITION
3.1 Some success has been achieved in Westminster
by working with the Advertising Association to dissuade "mainstream"
companies from using flyposting. More recently, a number of West
End theatres have agreed to co-operate with the City Council in
combating flyposting. However, media and entertainment companies
continue to make extensive use of the medium, as do others seeking
to appeal to the youth market (cf the 2003 "ishaggedhere"
campaign for Mates condoms). Indeed, many within the industry
argue that flyposting is a legitimate medium, and criticise those
authorities which attempt to enforce the law.
3.2 The offence of fly posting is dealt
with by section 224 of the Town and Country Planning Act 1990
and the Control of Advertisement Regulations 1992. Those who derive
benefit from an unlawful display are deemed to display the advertisement,
but can avoid prosecution if they can show that they neither knew
nor consented to the display. The London Local Authorities Bill
currently before parliament will restrict this defence so as to
require the defendant to prove that he took all reasonable steps
to avoid the initial display and bring about its discontinuance.
Section 331 states that, "where the offence is committed
with the consent or connivance, or be attributable to any neglect
on the part of a Director, manager, secretary or any other similar
officer of the body corporate, then he, as well as the body corporate,
will be guilty of the offence".
3.3 Despite the proposed changes to the
flyposting legislation in London, conventional enforcement against
flyposting by these companies remains enormously costly. Westminster's
annual spend on combating flyposting and graffiti exceeds £400,000
per annum, but is almost entirely ineffective in reducing the
extent of the problem. Despite 60 successful prosecutions brought
against companies since March 2002 (see APPENDIX 1), the process
works too slowly and the penalties (between £75 and £2,000)
are far too small to deter those engaged in it. It is cheaper
to flypost and pay fines than to buy legitimate advertising space.
(Advertising spaces on bus shelters in central London can cost
from £100 to £500 per week depending on location and
season). Moreover, prosecution by local authorities is viewed
by some marketing professionals as a positively promoting youthful
brand values of rebellion and "street credibility".
The Marketing and Business Development Manager of Ansell, owners
of the Mates brand, was quoted in "Mediaweek" last year
as saying that flyposting gives a brand more "street credibility".
The company is entirely unrepentant about its flyposting campaign.
We are helping, not hurting, the flyposters.
4. AN ALTERNATIVE
APPROACH
4.1 We want to have a significant deterrent
impact on those companies which use flyposting. To that end the
City Council is now seeking to use their own corporate governance
structures (eg Companies Act provisions regarding the duties of
Directors, DTI regulation, internal policies on ethics, social
responsibility or the environment etc) to call Directors to account.
The intention is to impose internal costs in coping with our campaign
greatly in excess of what they would have to bear in fighting
conventional prosecutions in the courts.
5. KEY ELEMENTS
OF THE
CAMPAIGN
5.1 The key elements of the campaign are
as follows:
— We notify individual Directors of
offending companies of the activities being carried out on their
behalf by their marketing departments (it must be demonstrated
that named Directors have knowledge of the illegality for subsequent
measures to "bite").
— We take enforcement action for subsequent
offences against the individual Directors rather than the company.
Where possible we will seek to prosecute for criminal damage.
— If we succeed in securing convictions
for criminal damage or any other indictable offence, we intend
to press the DTI for them to be debarred from holding Directorships
in UK companies.
— We are planing a media campaign associated
with the above activities, drawing Directors' attention to their
personal exposure, and the public's attention to the conflict
between companies' avowed polices and their actual business practices.
6. HOW COULD
GOVERNMENT HELP?
6.1 Make the existing legislation effective.
The normal process involved in enforcing against flyposting
involves the local authority first in serving notice on the person
responsible (whether the agency or the beneficiary) requiring
them to remove it within a reasonable time (usually 48 Hours).
Taking the 2003 Mates condoms campaign as an example, the City
Council served notice on the company to remove posters from four
sites within Westminster, which it did. However, at the same time
as agents of the company were removing posters from some sites,
many more were being put up elsewhere. Moreover the company could,
had it so wished, have complied with the original notices by simply
overposting the originals with new posters, thereby "resetting
the clock" and requiring the City Council to serve fresh
notices. This indeed was the action taken by one of our major
flyposting companies to a notice served on its Directors in January
2004. The existing legislation is an open invitation to any moderately
intelligent and well-resourced advertiser to play the system.
6.2 Set realistic penalties. Where
companies fail to comply with our notices then we can and do take
them to court. The fines awarded by the courts range from less
than £100 up to £2,500 in cases where we have been able
to bring evidence of multiple offences. In the context of the
marketing budgets available for major campaigns, this is petty
cash. Moreover, as the advertisers do not pay for legitimate outdoor
advertising space, the overall cost to the company is less than
it would be for a conventional campaign, even allowing for fines.
6.3 Create an effective regulatory framework
for outdoor advertising. Because flyposting is an illegal
medium it falls outside the machinery of self-regulation which
controls the content of advertisements in the UK. We are given
to understand that a number of complaints about the Mates "ishaggedhere"
campaign were received by the Advertising Standards Authority,
but that it was been unable to deal with them because illegal
advertising falls outside the scope of the British Code of Advertising
and Sales Promotion.
6.4 Ensure the DTI backs Councils which
take action against Directors. Section 2 of the Company Directors
Disqualification act 1986 allows for a disqualification of a director
if s/he is convicted of an indictable offence in connection with
the promotion of a company. Flyposting is not an indictable offence,
but Criminal Damage is. Ideally, the scope of the 1986 Act should
be extended to encompass flyposting. Failing that, a statement
of intent from the Secretary of State for Trade & Industry
that she would give careful consideration to the status of Company
Directors who had been found guilty of criminal damage would greatly
strengthen the hand of local authorities in their battle against
flyposting.
7. CONCLUSION
7.1 To sum up: the existing legislation
is almost entirely ineffective as a deterrent to flyposting. There
is no mechanism in place to control the content of flyposting
campaigns at all. Despite the Government's heralded intent to
enhance local authority effectiveness in improving the public
realm, the 2003 Green Paper proposals do not go nearly far enough.
If we are to make any significant impact on the problem, local
authorities need significantly stronger powers. The courts need
to be able to impose fines which are effective deterrents and
proportionate to the benefits the advertisers receive from their
illegal activities; the content of illegal advertisements needs
to be brought under control; and the Directors of flyposting companies
need to feel they may be held personally to account for the activities
they sanction.
January 2004
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