Fly-posting
31. Fly-posting is the commercially-driven defacement
of the local environment with advertisements pasted or attached
illegally to buildings, other structures or street furniture.
It is not a recent phenomenon although, as became clear to us
during evidence sessions for this and the Sub-committee's previous
inquiries, it is becoming increasingly mainstreamed into conventional
advertising. It is a shady activity; there may be many individuals
and organisations in between those who profit from the advertising
(the company whose event or product is fly-posted) and those who
physically carry out the activity, but these are often difficult
to track down. Catching and prosecuting the individuals carrying
out the physical activity is difficult enough; catching and prosecuting
the companies who benefit from their illegal advertisements has
until recently been, in almost all circumstances, unthinkable.
A company whose product or event was advertised illegally has
always been able to use the legal defence of ignorance and lack
of consent: unless it can somehow be proven that it knew about,
ordered or financed such illegal advertising (evidence which would
have to be tracked down from within that company or from communications
between it and one of those shady organisations that supply its
fly-posting needs) it will easily escape punishment.
32. Westminster in London is an urban area like many
others beset with the blight of fly- posting. As its council
told us in oral evidence for the last inquiry, in 2003 the area
experienced 2,032 incidents of fly-posting, a 27% increase on
the previous year. The cost to this council of fly-posting and
graffiti is some £400,000 annually.[38]
The blight is significant everywhere but particularly affects
areas which rely upon tourism. Westminster Council takes fly-posting
seriously but states simply that "the current approach to
fly-posting isn't working and isn't likely to work in the future."
[39]
33. As the Council went on to explain to us, fly-posting
will only be combated effectively when there are stronger deterrents
than at present, and when it becomes easier to prosecute offenders
and to follow the chain of responsibility along its various links
to those whose companies benefit from the posters themselves:
"In order to make a significant impact on
the businesses involved in the activity, it will be necessary
either greatly to increase 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 Act.".[40]
As we made clear in our last Report
on Environmental Crime and the Courts, sentences for environmental
crime are often too low and occasionally derisory. This is certainly
the case with regard to fly-posting.
Despite 60 successful prosecutions brought against individuals
and companies by Westminster Council since March 2002, the penalties
levied against offenders (between £75 and £2,000) are
far too small to cause sufficient pain and suffering to the companies
involved. The process is anyway much too slow. It is cheaper
to fly-post and pay a fine than to advertise legally (much as
it is cheaper to dump waste illegally than to pay the charges
for legal disposal). Indeed, some companies actively boast about
their use of fly-posting (for example, the "ishaggedhere"
campaign for Mates condoms, as noted in our last Report on environmental
crime) and see its illegality as a way of boosting sales as a
result of accruing street credibility through what is effectively
promotional crime.[41]
34. Fly-posting is a lucrative business. Diabolical
Liberties, a London-based company, was recently reported in London's
Evening Standard as having a turnover of £8 million
from such activities. It is claimed that it was the company responsible
for carrying out, amongst other campaigns, the Mates' advertising
mentioned above.[42]
Such a company bridges the gap between the company whose products
or events are being advertised and the group of individuals who
actually post up the offending advertisements. Companies whose
products or events are illegally advertised of course also benefit
from fly-posting; their advertising is cheaper than it would otherwise
have been, they sell more products or attract more people to events
than if they had not advertised at all, and their profits are
consequently greater. Hitting the fly-posters, the organisers
of fly-posting campaigns and those whose products or events are
fly-posted, and hitting them with hard and appropriately severe
penalties, seems to be the most straightforward and just way to
deal with the problem. The Government
must ensure that the law facilitates the investigation and prosecution
of companies which pay for their products or events to be illegally
advertised. It should look into ways of making it easier for
local authorities to take such companies to court, to compile
evidence from company records for the purposes of prosecution,
and thereby to lead successful cases against offending companies.
35. We have dealt with penalties and sentencing in
our previous Report on environmental crime. Clearly there needs
to be a spread of penalties by type and severity available to
magistrates and Crown courts (when appropriate) which are truly
deterrent and sufficiently robust. The person fly-posting needs
to receive a stiffer penalty than is generally the case at the
moment—either a larger fine or, where appropriate (depending
on means), a long community sentence. Such individuals should
also be compelled to remove all the posters which they were posting,
whether those posted by that person or those of the same type
posted by others, in association or not. However, those companies
paying these people, and those companies who are the end beneficiaries
of the fly-posting, are the real villains of the piece; these
companies need to be punished severely. This may mean hefty fines,
at or above the current set maxima, depending on the size and
turnover of the companies concerned. For very large companies,
other penalties such as those set out in our previous Report may
be more appropriate than simple fines, or could be used in conjunction
with them; forced share options, mandatory publication of offences
in the company's annual report, &c.,.[43]
Maxima for sentences for fly-posting
should be raised further from their current levels: DEFRA's proposals
for sentencing with regard to fly-tipping are a useful indication
that the Government is keen to see maxima raised where appropriate.
Fly-posting is certainly an area for such appropriate increases.
36. However, the greatest difficulties faced by enforcement
authorities lie in tracking down the middle-men or the appropriate
individuals in the companies who are the direct beneficiaries
of the illegal advertising. Unless someone is caught in the act
of fly-posting, or there is direct and clear evidence of an individual
organising or authorising its commission, prosecutions can be
time and resource-consuming, and fraught with practical and legal
complexity. To begin with, in most instances an offence is only
really committed when the person known to have fly-posted—or
to have benefited from it—is served an order to remove the
offending posters, usually within 24 or 48 hours, and then does
not comply with that order. When Mates was so served in 2003,
the company took down or otherwise removed the offending posters
but its agents were all the while continuing to put others up
elsewhere.[44] Laying
one poster over the top of another is another way of bypassing
the notice for removal. It is too easy to avoid prosecution for
fly-posting where authorities do not have definite proof, which
most do not, that a company knew about or consented to the fly-posting.
This is clearly unsatisfactory. The London Local Authorities
Act 2004, a piece of private legislation which entered into law
earlier this year, allows London authorities at least to require
the defendant to prove that he took "all reasonable steps
to avoid the initial display and bring about its discontinuance".
Unless a company can offer such a proof it can (more easily)
be prosecuted.
37. EnCams has recently been encouraging local authorities
to coordinate prosecutions of the companies whose events or products
are illegally advertised in their area; it has also organised
fly-posting protests outside the headquarters of companies who
participate in fly-posting campaigns—companies such as Sony
and BMG.[45] While these
are welcome developments, and EnCams is to be commended for its
leading role in them, they signal a certain exasperated impotence
in the face of an offence which it is currently too difficult
to deter and to punish. Recently, however some advances against
such offenders have been made. Camden Council in London took
out anti-social behaviour orders against Sony and BMG on the basis
that they were responsible for defacing areas of Camden with their
illegal advertisements. Sony has subsequently stated its express
intention to discontinue all of its fly-posting activity; at the
time we agreed this Report, no response had yet come from BMG.
It may indeed be that powers under the Anti-Social Behaviour
Act 2003, which are in many other areas providing a useful array
of tools for effective use by police and other enforcement authorities,
both national and local, can be used imaginatively to tackle the
blight of fly-posting. Other authorities are expressing an interest
in using the same powers as Camden Council. It is to be hoped
that they too meet with success. However, more powers may still
be needed—not least to permit enforcement authorities properly
to punish those companies—and key individuals within them—who
do not promise to desist, or who do so and then continue fly-posting
anyway.
38. Some other authorities are using alternative
means to deal with fly-posting. Oadby and Wigston Borough Council
has come up with an innovatory method of reducing fly-posting.
Over each illegally posted notice of a product or event the Council
posted another notice of its own reading simply "Cancelled".
This has had the desired effect of striking at the very purpose
of the illegal advertising in question. Those responsible for
the fly-posting have often taken down the notices and posters
after such treatment and have not put up any more lest they receive
the same treatment from the local authority. Here the Council
is cleverly beating the fly-posters at their own game.[46]
In Leeds, the Council acted in a more pro-active manner; realising
that a majority of the fly-posting in some parts of the city was
aimed at the student population, the Council decided to regulate
this by establishing large drums upon which it would be legal
to advertise events and products (principally the former). The
Council negotiated with those individuals and groups responsible
for the physical activity of fly-posting in these areas and an
agreement was reached that no fly-posting would take place except
on these drums (which now number 76). By and large this has been
a success, with very little fly-posting taking place elsewhere
in these areas and with the advertisers' agents themselves monitoring
and regulating their business effectively.
39. There is also a particular problem with regard
to fly-posting on street furniture owned by telecommunications
companies. Phone-boxes, street cabinets and poles are favoured
sites for illegal advertising—also for graffiti—and
their defacement plays a significant part in the visual blight
that afflicts every town or city across the country. Those companies
which provide the street furniture prioritise the removal of obscene
or racist graffiti or posters, something for which they are to
be commended: Telewest has a policy of removing it within 48 hours.[47]
However, such companies are finding it increasingly difficult
to remove graffiti or posters regularly when the cleaned cabinet
or phone-box simply provides a new canvas upon which to daub or
attach illegal advertisements. Local authorities are unhappy
with the reluctance of companies who provide such furniture to
see to its regular cleaning. This impasse benefits no-one
except those who are committing the crimes. The
burden of upkeep of cabinets and other items of telecommunications
street furniture ought to lie with those companies who install
them in order to provide a service from which they profit.
This is entirely reasonable. Closer liaison between these companies
and local authorities and the local police, assisted by the sort
of detailed information as to fly-posting and graffiti hot-spots
that Telewest Communications is gathering, is the proper means
to mitigate the costs which such companies are inevitably facing.
Those offenders who fly-post
on street furniture must be caught and prosecuted: the blight
they create must not be ignored, or their damage treated as too
expensive or frequent to remediate.
40. There is an increasingly grey line between the
commercial world of fly-posting and the use of graffiti for similar
or identical ends. Some companies are promoting their products
through graffiti, or even by means of the removal of graffiti
in shapes which spell out the name of their products (as was reported
to us in Leeds with regard to local advertising of the Smirnoff
brand). The Local Government
Association must do more to act as an effective coordinator for
best practice and for information relating to successful techniques
adopted by local authorities—whether in terms of prosecutions,
control and management or in terms of reducing fly-posting altogether.
The law is clearly not satisfactory here; neither are the punishments
currently meted out. Local authorities will need to be able to
wield a bigger legal stick if they are to beat the fly-poster
and stay ahead of the game.
38 HC126 (2002-03); Ev33-5. Back
39
Ibid; Ev33, para 2. Back
40
ibid. Back
41
ibid: see particularly, Ev34, para 3.2. Back
42
The Evening Standard, 23 June 2004. Back
43
HC126 (2003-04), paras 40-1. Back
44
ibid, Ev34, 6.1. Back
45
Qq41-2. Back
46
http://www.idea.gov.uk/publications/liveability/?id=oadby. Back
47
Ev99. Back
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