Examination of Witness (Questions 380-389)
Mr Jim Murray
6 NOVEMBER 2006
Q380 Baroness Eccles of Moulton: But
you do extend your comments to embrace non-linear as well?
Mr Murray: Yes, and that is more difficult.
Again, I suppose that the part of non-linear which we focus on
is the part which would be most akin to broadcasting, the part
which is aiming at a relatively mass market, again drawing on
my example of Procter & Gamble, not, by the way, that I would
expect Procter & Gamble to do this; Procter & Gamble would,
I think, have more sense than to antagonise Sweden, for example,
in its advertising on-line or not, but we are looking more at
the mass market. This is not just here but right across. It is
a very complex problem of on-line that there tends to be a continuous
spectrum, but at one end on-line is just as much broadcasting
as traditional broadcasting, whereas at the other end, of course,
it is not.
Q381 Lord Haskel: Can we move on
to self-regulation? This is all to do with implementation. What
do you think about the revised draft? It emphasises self-regulation
whereas the original draft did not mention it at all. Do you think
this is a way in which these rules could be implemented in a proper
manner?
Mr Murray: Broadly, no, but I would qualify
that. In our view, and I have said this in another context, the
Commission's and the regulators' and governments' attachment to
self-regulation is a bit like second marriages: the triumph of
hope over experience. Self-regulation can work within a defined
legal framework sometimes. It can work better, by the way, in
some Member States than in others; there are clearly areas where
it works relatively well, such as in the UK, but it does not seem
possible simply to transfer the model very easily to many other
Member States. For example, I do not think it would work at all
in Italy, but the real question is to define what it is and to
link it. At the end of the day regulation, whether directly or
indirectly, is a matter for public authorities. It is not something
that you can completely abdicate and there is a contradiction
in self-regulation. Is it purely self-self-self-regulation and,
if so, how do you judge it as an instrument of policy? As soon
as you ask the question you say, "Well, of course, it should
meet certain criteria", and so on, but the more you say that
self-regulation should meet certain criteria the less you have
self-regulation and there are other criteria set out in the directive
or in a neighbouring act or whatever. There is a conflict there
which has never really been satisfactorily resolved. It is usually
resolved by slightly ignoring it or being slightly inconsistent.
We can see self-regulation as being possible within a very clear
legal and institutional context but not in the kind of context
in which it has appeared in recent directives in that Member States
are to encourage self-regulation. This is a nonsense.
Q382 Lord Haskel: Do you think this
document gives that background, that reinforcement of self-regulation?
If it does not work then institutions can step in?
Mr Murray: There are two different models. There
is the kind of model where, usually for want of political will
but maybe for other, better motives, a government will say, "We
will try self-regulation", and the matter is left to industry,
and the thing goes on and then nasty people like my organisation
say, "It does not work, it is terrible", and controversy
breaks out and we have lots of meetings and so on and the government
says, "It does not seem to be working and you have to be
careful", so everybody pulls up their socks and goes on.
This goes up and down all the time. There is a different way,
which is if you can link self-regulation to other means of dealing
with complaints, and the UK managed to (I suspect by accident
but that is another question) some time ago in the implementation
of the Misleading Advertising Regulations in the UK, going back
to the eighties. The Director-General of Fair Trading, when he
gets a complaint, can consider whether other means exist to deal
with that complaint or not. I suspect this was put in because
of the dislike at the time of the UK Government of implementing
almost anything from Brussels, but at least the Director-General
of Fair Trading can decide. If you get a complaint about misleading
advertising he can ask himself, "Is there another way in
which this complaint can be dealt with? Yes, I think ASA can deal
with it or maybe some other authority", and that is it. If
it were to happen that ASA fell on hard times in the UK, then
pro tanto the Director-General of Fair Trading would stop
saying, "I think ASA can deal with this", and would
say, "ASA are not very good at the moment. I think I will
have to deal with this myself", so there is a link between
the two. One does not have to argue every five years that ASA
is working or not working and so on. I do not suggest that that
is the precise model but I propose it as establishing some kind
of legal or institutional framework within which self-regulation
can work and can develop and within which there is a corrective
mechanism if there are problems. The same situation exists also
in the Nordic countries but in a different way, where there is
a general duty not to do anything which would be contrary to good
marketing practice. The consumer ombudsmen say what they think
are good marketing practices, they issue guidance notes or whatever,
industry may or may not agree, but if the ombudsman thinks the
trader is engaging in practices which are contrary to good marketing
practice he can take the trader to the market court for a declaration.
If the trader is doing something which is contrary to the generally
accepted standards of the profession it is very likely the court
will decide that this is contrary to good marketing practices,
but if the trader simply says, "I am doing everything that
my professional code says I should do", the court may say,
"We think that is not enough", and so again there is
an interaction going on there all the time. Obviously, as the
market court breaks new ground that new ground will be incorporated
into the codes of practice of the relevant trade association,
so again there is a dynamic inter-relationship between the two
rather than this kind of extreme of the either/or and the fight
every five years or so and the threats and the minister and the
Commission or this, that and the other.
Q383 Lord Haskel: Is this the view
of Which? In Britain?
Mr Murray: Which? Do not have a very
high opinion of ASA, so this may influence the view of the relationship
that I mentioned under the Misleading Advertising Regulations,
but I cannot directly speak for them on a British issue, obviously.
Which?, of course, have fully taken part in our discussions
on self-regulation more generally. They extend, of course, far
beyond this and they are certainly at one with this idea of having
this inter-relationship of some kind, but whether they agree with
a particular arrangement, whether it is the UK one or the Nordic
one, I do not know.
Q384 Lord Fearn: Has the Commission
adequately considered the impact that this proposal is likely
to have, on the sector first, and on the consumer second?
Mr Murray: I do not think they have considered
it at all in relation to the wider cultural issues that I was
talking about. These have not been considered at all. If you take
a consumer simply as a passive consumer of whatever, you may well
say, "The more advertising the better", but it is not
our view of the matter. As for the industry, of course, I do not
know. I am not really competent to answer that but I do find it
odd that much of the discourse is always about the threat of new
media and a tendency, as I said earlier, to overlook the fact
that some of the problem, if you like, is a side effect of having
more and more channels.
Q385 Chairman: I do not know the
answer to this myself, but in the consultations that the Commission
had, and I have no doubt they consulted yourselves or you were
one of the stakeholders, did they seek, perhaps through consultants,
to ascertain a consumer view of advertising? Clearly you are an
important representation in that but to your knowledge did they
seek across different Member States to examine and explore consumer
attitudes towards advertising?
Mr Murray: I do not know. I would only say in
comment that there are different ways of exploring consumer views.
If you ask people in the street if they like advertising, they
would, like me, say, "Oh yes". It is only when you look
more closely, as Which? did in their focus groups, at parents
with young children and so on, that you get what I think is to
some degree a truer picture of the situation. This would be particularly
so, of course, in relation to parents because parents will not
easily confess to being overwhelmed or not doing the right thing
by their child. Any parent passing by in the street will say,
"Oh, yes, I determine what my child eats".
Q386 Chairman: Quite a lot of what
you have said, and this does not diminish the importance of it
at all, is about understanding about children's advertising, and
you then brought in obesity as an issue. Is there anything else
that we have not touched on that the consumer groups would wish
to see limited in advertising? You have mentioned alcohol, and
tobacco is one, and you have also mentioned obesity. Is there
anything else?
Mr Murray: No. Obesity is one aspect, much of
the aspect, of the general problem of diet. We have moved from
a situation where we have more or less reasonably safe food and
the institutions to deal with it. We face the more general problem
now of diet and nutrition.
Q387 Chairman: Let me put a naughty
suggestion to you, which I am not going to suggest again, but
if you took the view, and I put this up only to be argumentative
and to see the reaction, that issues of real public concern should
be reflected in limitations on advertising, and if world climate
change really was regarded as very important, carbon emissions
and so on, would you support restricting advertising on television
of cars? You see my drift of thought?
Mr Murray: Yes. What about aeroplanes?
Q388 Chairman: Air travel. Where
would you draw the line in law?
Mr Murray: I have to say, to be frank, that
the consumer part of being a consumer organisation would not at
the moment encourage us to demand restrictions on flights.
Q389 Chairman: I thought I would
pull your leg. You have been enormously generous with your time
and given us an insight in your evidence that we have not received
from other witnesses and that has been valuable to us.
Mr Murray: I am glad to have been of help.
Chairman: Mr Murray, on behalf of the
Committee thank you very much.
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