Select Committee on Environmental Audit Ninth Report


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   ibidBack

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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