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Ofcom Secondary Issues


Chris

This article is a spin-off from an umbrella article on dishonest advertising which you can read here.

Maybe it's genetic, I'm not sure. But generally, when I'm trying to work with an organisation, there are two levels of thinking going on my my brain. The first is the primary goal of doing the work. The second is a whole slew of thoughts about how bad the service is, and about why they do things the way they do, and why they don't do things in much better ways.

And because I never learn my lessons, I'm always jumping in to propose improvements.

This article details some secondary issues I found in working with OFCOM whilst doing the main business of complaining about ads. You can jump to specific items via these links, or read them all:

Being Ignored

My initial efforts to work with OFCOM on dishonest advertising were dismal, and my follow-up complaint was not dealt with well.

Most ordinary people don't get beyond a sofa-bound rant.
Very few complain to a watchdog.
Almost no one will get beyond being ignored by the watchdog.
Perhaps that's the way they like it.

I have to say that - depressingly - this is typical of such organisations. They are funded by us, and set up to protect us - to serve us. Yet they often operate inefficiently - and complacently so. They treat us with contempt. Since they are our watchdogs this is a very miserable set of circumstances which I think needs stamping on.

Here are my initial contacts with OFCOM and the complaint I submitted.

31.5.4

Hello, (I just sent this via your web form but I got an obscure error which may mean you didn't receive it)

I am increasingly concerned by the low tricks being used (and permitted) in television advertising, and I'm considering how worth while it would be to address these issues with you.

I could send you a list of perhaps 20 issues I'm unhappy about. Examples - claims by financial product advertisements that rates are "competitive" when they are clearly not, and large chunks of tiny text displayed on screen to briefly to be read, or out of synchronisation with the facts they supplement - so that the audio and visual information swamps out the text.

Are you able to address such concerns? Or would we be wasting each other's time?

Thanks,
Chris

So. Ofcom's primary contact method - their website form - didn't work. Then I sent them email, which they ignored for two weeks. Regardless of the reasons, this is dismal performance from our watchdog - who are there as guardians of excellence in the bodies they monitor. Unfortunately, this is entirely typical performance from public bodies, and it's what puts the GREAT in Britain these days.

I'm so used to being ignored by the agencies we pay to help us out that I've written an automatic reminder system which prompts people who ignore me. It kicked off below..

19.6.4

Hello.

I have not received a reply to my email sent to you on 31/05/04 15:53:58.
Please update me on progress.

Thanks & Regards,
Chris @ Let's Fix Britain

This is an automated reminder.

Now, this got me a response. 21 days after my initial contact, Ofcom spoke to me. Of course, it spoke with a huge disclaimer, and it spoke via a word attachment, and it spoke in corporatese double-speak - but at least it spoke. Here's the disclaimer, which I have removed from all later correspondence.

Ofcom is the regulator for the UK communications industry, with responsibilities across television, radio, telecommunications and wireless communications services. Ofcom exists to further the interests of citizen-consumers as the communications industries enter the digital age.

Ofcom has taken over the responsibilities and assumed the powers of the five former regulators it has replaced - the Broadcasting Standards Commission, the Independent Television Commission, Oftel, the Radio Authority and the Radio communications Agency.

I know. Why do you tell me all this here? (I imagine they'd say "Oh, it's a standard letter, sir" - Oh, of course. How foolish of me. It must be useful and appropriate then, huh?)

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed.

Why should it be confidential? You're a publicly funded body, serving the public. What have you got to hide?

If you have received this email in error please notify the originator of the message. This footer also confirms that this email message has been scanned for the presence of computer viruses.

Any views expressed in this message are those of the individual sender, except where the sender specifies and with authority, states them to be the views of Ofcom.

HAHAHAHA. Oh, great. It's just ass-covering CRUD, and I hate it.

But anyway, their response to my initial contact several weeks before finally wheeled in. Here it is.

21.6.4

Dear Mr Wesley

Unacceptable Advertising


Thank you for contacting us. I am sorry that some financial advertisements have caused you concern.

I should explain that we don’t give prior approval to advertisements or the themes chosen by the advertisers but we can intervene if there is evidence of a breach of our Advertising Code.

Our relationship is with the television broadcasters and we require them to ensure that they advertising they carry complies with our Code. We can and do investigate complaints about specific claims made in television advertising; however, we would look to other agencies such as the DTI to ensure the wider regulation of loans or debt services. We could not presume that a product or financial service that is otherwise legal would not be appropriate for some people. As with all advertising, individuals must make their own decisions based on their circumstances.

Thank you for taking the trouble to raise this matter. We would agree that there are alternative sources of help and advice about debt problems, but if the government licenses and regulates loans services there are understandable limits to what we, as simply the television advertising regulator, can do. We do what our powers allow, and if any future legislation has implications for advertising of these kinds of services we will, of course, pay due regard.

Yours sincerely

Gary Trott
Case Officer

21.6.4

Gary,

Thanks for your response. Please consider not encasing responses in Word.
It makes emails larger and reduces their accessibility, whilst adding no value.

You say you don't approve TV ads. Please tell me who does.

Your next paragraph says you do investigate complaints about specific ads, so I will send my complaints to you. Please let me know what your response and closure goals are.
Are you the only body that does this work?

Please direct me to the code which you measure compliance against. Presumably it's on the web.

Presumably you measure compliance of TV ads against your code, and take action against transgressions.

How do transgressions reveal themselves to you - do you monitor - or rely on complaints?

What kinds of action are you able to take?

Do you keep a record of investigations and actions taken - and is it available to the public?

Thanks,
Chris

Whilst I was conducting my dialogue with Gary, someone else popped out of the woodwork.

22.6.4

Dear Sir

In order for us to trace your original e-mail can you please supply
more information. Did you register this via the complaints form on
our site or e-mail us directly? What was the complaint about? Did
you register your complaint with a full name and contact address?
If you can supply any / all of the above info it'll assist us to
locate your complaint and give you an update.

Alistair Hall
Broadcast Team Officer - Contact Centre
Office of Communications
Riverside House
2A Southwark Bridge Road
London SE1 9HA
www.ofcom.org.uk

22.6.4

Hello Alistair,

Garry Trott replied to me yesterday.

Thanks & REgards,
Chris

Another week passed with no reply so my automatic reminder system woke up and fired off a prod.

29.6.4

Hello.

I didn't see a reply to my email sent to you on 22/06/04 09:52:51.
I'm concerned that you may not have received it, or that I somehow missed your reply.
Please update me on progress.

Thanks & Regards,
Let's Fix Britain

Ofcom's Alistair got the wrong end of the stick...

30.6.4

Dear Sir / Madam

I attach you're e-mail of 22 June, in which you indicate you
received a reply from Gary Trott, hence the lack of further
communication on this matter.

Alistair Hall

30.6.4

Alistair,

Gary did respond to me, and then I sent him a follow-up email.
This has not been replied to, and this is why I sent my follow-up email.

Please arrange to have Gary or someone else reply to that email.

Thanks,
Chris

See how painful this is? I'm climbing a mountain here, just to get to the point where I can make my first complaint. Yet another week went by before my program kicked off yet another reminder.

5.7.4

Hello.

I didn't see a reply to my email to you.
I'm concerned that you may not have received it, or that I somehow missed your reply.
Please update me on progress.

Thanks & Regards,
Let's Fix Britain

I waited a further two days, before, being a tad peeved, I kicked off another reminder manually.

7.7.4

Hello.

I didn't see a reply to my email sent to you on 05/07/04 10:30:46.
Please update me on progress.

Thanks & Regards,
Let's Fix Britain

8.7.4

Hello Lorraine,

Please pass this email to your supervisor, and let me know their email address.
One easy way to do that is to forward it to them with me on the CC list.

=== Email to your supervisor ===

Hello,

I am trying to work with OfCom but my initial attempts have been dismally un-successful.
I have sent you FOUR reminders, why was that necessary?
Allestaire got confused when he should not have done.
And now I hear that you lost my email.

Please give me your response time goal, so I can avoid bugging you too early in future.

Sorry to be direct, but this is very depressing since I want to work with you people quite a lot.

I hope we can get more efficient. Is there anything I can do to help?

Below is a copy of the email you apparently lost. Please expedite a response for me.

Thanks & Regards,
Chris

I included my earlier emails to Gary Trott

10.7.4

Hello.

I didn't see a reply to my email sent to you on 08/07/04 10:31:51.
I'm concerned that you may not have received it, or that I somehow missed your reply.
Please update me on progress.

Thanks & Regards,
Let's Fix Britain

12.7.4

Dear Mr Wesley

Unacceptable Advertising

Thank you for your email of 21st June addressed to my colleague Gary Trott. I will try to answer your questions.

As Gary explained, we enforce the Advertising Code (viewable on our web site). We are currently applying the Code established by our predecessor, the Independent Television Commission, but Ofcom will draw up its own Code in due course. We require the broadcasters to ensure that the advertising they carry complies with our Code. Broadcasters can clear advertisements themselves but most employ an organisation called the Broadcast Advertising Clearance Centre (BACC) which advises broadcasters and advertisers whether a particular advertisement conforms with the Code. We can intervene if an on-air advertisement appears to be in breach of the Code by being likely to mislead, cause harm or provoke widespread offence.

As far as your own complaints are concerned it would be advisable to check our Code first, and our Complaints Bulletins. For example, the issue you raise about ‘competitive’ interest rate claims is usually not in breach if the advertiser is clearly providing a service for borrowers with a poor credit rating or County Court judgemental, but we are happy to judge each case on its merits. As far as on-screen text is concerned there are technical rules governing the size and duration of such text, and we do investigate claims that any significant qualifications or conditions are unclear for some reason. We often assess what the average viewer’s likely ‘take out’ would be i.e. what would the average viewer consider a claim or offer to be. But I must stress that complaints should be about the television advertisement as seen, and though we can intervene as necessary we do rely primarily on what complainants tell us. Substantive cases involving our Code, whether upheld or not upheld are published with findings in our bulletins. Statistical information is provided about the rest.

Ultimately a broadcaster can be fined or lose their broadcasting licence for serious breaches but that would be rare. Amending advertisements or dropping campaigns is very expensive so the consequences of a simple upheld decision can be significant for broadcaster, advertiser and agency. (If you review the ITC legacy archive on our web site you can get an idea of what happens in typical cases. We also give guidance if any aspect of advertising or advertising trends is causing concern).

As I say, our Code will undergo revision in due course and you can register on our web site for automatic updates on published reports and consultations. You can also view audience research and reports. There are proposals for broadcasting advertising to be co-regulated by the Advertising Standards Authority in the near future (see web site).

One of the difficulties we have is that viewers regard us as not just the regulator of what appears on television, but of the industries who advertise also. Our role is confined primarily to what appears on screen. If there are problems with the trading practices of an advertiser for a product or service these are matters for Trading Standards, or the respective regulator for that industry or sector. What we do is ensure that what has appeared on television is in accordance with our Code.

I hope that this information is helpful

Yours sincerely

Elfed Owens
Case Officer
Ofcom Contact Centre

P.S. I note your preference for plain-text emails but I’m afraid our complaints system is set-up to provide word documents with header information.

13.7.4

Elfed,

I see your job title is "case officer", and so I'm wondering - are you Lorraine's supervisor?

If not, please tell me why you have answered this email, since I asked her to pass it to her supervisor.

If you are, then please tell me why you have ignored my complaint about the conduct of your organisation, and then respond to the questions you ignored, which are:

QUESTION 1: I have sent you FOUR reminders, why was that necessary?

QUESTION 2: Please give me your response time goal, so I can avoid bugging you too early in future.

QUESTION 3: I hope we can get more efficient. Is there anything I can do to help?

I will deal with the questions you DID answer (from an earlier email) separately, to minimize further confusion.

Thanks,
Chris

=========== DISCLAIMER ========
I take full responsibility for my conduct in the email dialogues I conduct.
I grant you the right, and reserve for myself the right, to publish them wherever I choose,
providing they remain intact.

13.7.4

Dear Mr Wesley,

Thanks for this, I’ll try to answer your questions. Lorraine is our administrator, who deals with our inbox. Gary is the Broadcasting officer who replied to your original complaint. Both forwarded your emails to me so any delay is down to me. As explained, when a complainant is dissatisfied with a decision, the case is referred to a senior officer (in the case of Advertising, this is usually me). I can only apologise for the delay in replying but given the volume of enquiries we receive we have to prioritise and you were asking me to clarify codes and processes which are already explained on our web site. I replied as soon as I was able and while the reply was delayed I did address the specific points you raised at some length. If you would have preferred some form letters or holding letters, let me know, but we do strive to address the specific points people raise as best we can, and efficiency is not only measured in speed of response but in relevance of content. For a simple issue we would aim to respond within 10 days, for more complex or detailed 25 days. Complex cases involving wider investigations and communication with broadcasters could go beyond this. Every case is different, but I don’t think we would necessarily be regarded as more efficient by viewers if we used our limited resources of time and staff to give the same weight to every query. When something is clearly not urgent, there may be a wait, and I make no apology for giving greater priority to people who have been personally affected by advertising, or who have risked some kind of economic loss.

Regards,
Elfed Owens

19.7.4

Hello Elfed, thanks for your email. I admire your straight-talking style.
You have resisted the all-too common tendency to spout polite but content-free corporate-speak.

You say my four reminders went un-answered because you are busy and prioritised other work ahead of my email. From what you say, I'd agree with your prioritizations scheme.

But in my view, any customer enquiry should be RESPONDED TO within 24 hours. 10 or 25 days is extremely poor.

I understand that you may be investigating complex issues involving third parties who may not be
obligated to respond quickly to you. So if a full response is not possible within 24 hours then a holding response should be sent, containing the reason for the delay and an estimate for the full response.

Under NO circumstances should a customer sending FOUR reminders be ignored.

So, with no criticism implied for you, please pass this on to your supervisor who may want to consider a revision to your processes,
which would send all customers, minimally, a holding response within a few hours.

I don't need a reply, Elfed, and I know you're busy. But feel free to send one if you want.

Now I'll get back on the original issues I contacted OFCOM for.

Thanks,
Chris

19.7.4

Thanks Mr Wesley. Fair points. I was offering an explanation of sorts in my previous reply rather than an excuse; we would always like to do better. It’s fair to say that bringing five regulators into one in Ofcom has been administratively complex and the volume of complaints and queries has been far greater than anyone anticipated. We do acknowledge complaints on receipt (do let me know if that did not happen in your case). I’m not sure that 10 days exceeds what the public expects for our kind of work, especially if, as often happens, we need to request or check tapes but I accept that you were kept waiting rather a long time without explanation.

Thank you for your interest. I will forward your concerns and suggestions to a senior officer.

Elfed Owens

19.7.4

Elfed,

You asked - so I'll say that I don't think I did get that initial confirmation, though my memory may be wrong.

I accept that 10 or even 25 days may be entirely reasonable for the RESOLUTION of an issue.
My complaint was about being ignored over 4 reminders.

Finally, I have sent a complementary webmail to Ofcom today on the rest of its operations.
It looks like it is doing a very solid job in issuing it's judgemental, though I have asked questions
about the lack of punitive elements in their outcomes.

Regards,
Chris

On Punitive Damages

Ofcom's usual response to an upheld complaint is to tell the advertiser not to show the offending ad again in its current form. Because of the time it takes to process a complaint, that ad campaign may often have run its course, so the horse has bolted and closing the door will have no useful effect. OFCOM say that this approach often imposes significant financial penalties on the advertisers, but I wasn't convinced. I wanted to know why OFCOM don't punish advertisers. See how far I got below.

This item was submitted via the OFCOM website on 19.7.4

I've read your bulletins concerning TV ad complaints,
and it's clear that you get through a lot of work.
Your rulings seem to me to be first class examples of rationality.
It's great to know that you exist, and that you do the work you do.

Your whole website is an object lesson in clarify and efficiency.

I will be encouraging our members to make time to visit your site and submit
their complaints. (please feel free to let me know if there is anything I
should tell them which would cut down on time wasted at your end).

However.

The bottom line is generally that the ad must not be shown again.
This seems like closing the door after the horse has bolted.
I guess that the advertiser might incur some financial loss if an
intended long ad run is cut short, but then again - they may not,
and this is all incidentally to anything Ofcom may do.

Does Ofcom impose penalties on offending advertisers?
What about persistent offenders?

Ideas for making more impact include:

1. Publishing a league table of offenders to shame the worst.

2. Funding Ofcom from advertisers in proportion to the number
of complaints upheld against them in the previous year.

3. Legal action

4. Requiring advertisers to include some representation of their
good or bad conduct in any ads they may show (for example,
a small logo with a mark out of 10 for credibility).

Whadyathink?

Chris

For a week, OFCOM didn't reply. Can you imagine that?!
Reminder time.
What fun to do business with our watchdog.
See what a well-oiled machine Great Britain is?

Hello,

I submitted the email below via a form on your website
and have not yet received a response.

Best Wishes,
Chris

Another week went by. No response. Imagine my surprise.
Hello.

I didn't see a reply to my email sent to you on 26/07/04 13:50:15.
I'm concerned that you may not have received it, or that I somehow missed your reply.
Please update me on progress.

Thanks & Regards,
Chris @ Let's Fix Britain

2.8.4

I will be out of the office from Monday 2nd August until Monday 16th August..

[This was an automated response from Gary Trott's email account]

9.8.4

Hello.

I didn't see a reply to my email sent to you on 02/08/04 14:08:13.
I'm concerned that you may not have received it, or that I somehow missed your reply.
Please update me on progress.

Thanks & Regards,
Chris @ Let's Fix Britain

25.8.4

Hello.

I didn't see a reply to my email sent to you over a month ago.
Please update me on progress.

Thanks & Regards,
Chris @ Let's Fix Britain

2.9.4

Hello.

I didn't see a reply to my email sent to you on 25/08/04 12:30:17.
I'm concerned that you may not have received it, or that I somehow missed your reply.
Please update me on progress.

Thanks & Regards,
Chris @ Let's Fix Britain

10.9.4

Hello.

I didn't see a reply to my email sent to you on 02/09/04 12:48:32.
I'm concerned that you may not have received it, or that I somehow missed your reply.
Please update me on progress.

Thanks & Regards,
Chris @ Let's Fix Britain

16.10.4

Folks,

I have sent Gary SIX reminders on this, and have had nothing but an automated out of office response.

Please get me a response, and quite separately, but just as importantly - please tell me why I am being so comprehensively ignored.

Thanks,
Chris

21.10.4

Folks,

I've tried to conduct a dialogue with Gary with little success as he's ignoring me.

I have a vague memory that he wrote to me once saying he'd dealt with the issue, but I'm sorry to say that I cannot now find that correpsondence, and I may be imagining it.

If I have overlooked a response, please accept my apologies and re-send it to me, but either way - I don't think being persistently ignored in this way is acceptable, even if your correspondent is a senile old fool like me.

So, please response to the issue, which is included at the bottom of this email, and quite separately, please respond on the issue of being ignored.

Many thanks & Regards,
Chris

22.10.4

Dear Mr Wesley,

Sorry for the delay. Your ideas are interesting but Ofcom seeks to limit intervention to those cases which seriously warrant it, and where the evidence of a Code breach is clear. No broadcaster likes to be the subject of a negative report in an Ofcom bulletin. But the aim of good regulation is not just to be bureaucratic and punitive but to encourage best practice, and generally speaking the record of advertising regulation in the UK is a good one. The move to Ofcom/ASA co-regulation should also provide greater clarity and coherence for the consumer together with the independent judgement of the ASA Council (i.e. ASA decisions will not be made by executive officers alone). The aim is to ensure that broadcasters understand and take seriously their responsibilities, as well as the spirit of the Code, rather than just provide detailed and prescriptive guidance which too easily can turn into mindless bureaucracy that does not carry respect, support or public confidence.

Regards

Elfed Owens

22.10.4

Hello again Elfed,

I asked that someone respond on the issue of my six or more emails being completely ignored by Ofcom.
I see that your email has not done so, beyond a four word "sorry for the delay", but perhaps you were planning to do it later, or have passed it to someone else? Please advise.

On to the main issue. I'm a little concerned about some of your comments.

Presumably, the code doesn't contain huge amounts of trivia which we can and should ignore.
If it does, it's a bad code and should be re-written.
So, as our regulator for ads on TV and radio, Ofcom has the role of enforcing the code.

In that connection, the salient facts seem to be these:

1. Ofcom have no plans to pre-certify ads - The BACC do that, and the ASA re-org will consolidate that division of labour.

2. Ofcom decisions generally take about 7 weeks, which is often far longer than an ad campaign will run.

3. The outcome of upheld complaints is almost invariably just to ban the ad.
That is - to ban an ad which is generally, no longer running.
That is - the outcome is to effectively do nothing.

The summary: Ofcom exists, at public expense (£144m?) to review customer complaints and mostly, to take no effective action.

It seems to me that that our system is not going to encourage compliance with the code.
Rather, it will encourage the regular flouting of it.

I hear you say that no advertiser likes to be the subject of a negative report.
But my world experience tells me that advertisers don't seem to give a damn and will do whatever they can get away with, hence the "large print giveth and the small print taketh away" syndrome.
Self interest is the only guiding principle at work here, and it's Ofcom's role to use that fact, by effectively punishing those who break the code.

I suspect that we're at the end of the line here, but if you have comments, I'd like to hear them.
If not, please just let me know that we're done.

Regards,
Chris

 

23.10.4

Dear Mr Wesley,

I think it would be a distortion of our role to say we just ban ads. If you've looked at our complaints bulletins a total ban is not that frequent but misleading ads are changed, at the advertiser's cost, in order to continue being aired. The checking process for future ads also becomes more onerous for repeat offenders. You have to remember that ultimately the broadcasters are protecting their broadcasting licence. Even if licences are rarely withdrawn (usually for very serious infringements) this does concentrate the mind. Also you should not understimate the impact of a even a small revision on an extended multi-million pound campaign, with spots booked in advance and related marketing built
around the mass advertising. Certainly the advertisers are sometimes very vociferous about changes but that is a dispute for them to take up with the BACC; what we do is interpret the Code in the light of the evidence. Also, when an investigation is taking place an enormous amount of work is going on behind the scenes; these things are not done in a cavalier fashion, and our actions have to have a sound basis in due process. Our actions try be proportionate and encourage best practice. Also, we try to regulate
what goes on-screen but there are regulators for particular industries, sometimes with statutory powers, who are better-placed and more empowered to ensure that products or services themselves
do not risk misleading people. To expect the broadcast advertising to do it all is starting at the wrong end of the chain, and this is not often adequately appreciated, although I appreciate that trtaditionally viewers do trust television advertising (partly because it has been well-regulated).

We are in the middle of the move to the ASA at the moment and I can only apologise if we have missed some of your emails. The move is quite complex, involving migration and harmonisation of different
databases, as well as new premises. There may be breif hiatus but we will be up and running with our ASA colleagues in November. The Advertising Codes will be reviewed by the ASA in due course and I
think there will be opportunities for the public, including interested organisations, to express a view.

Regards,
Elfed Owens

23.10.4

Elfed,

Thanks for your further insights.

You are contending that upheld complaints require ad changes - and that these are costly, and constitute a major disincentive for advertisers to break the code.

In contradiction, I am assuming that most ad campaigns run for less than seven weeks, and will be over by the time Ofcom rules.

Do you have any data to support either case? Relevant data would be the minimum, maximum and mean average run times of TV ads. But the real killer metric would be the percentage of ads against which you uphold complaints which have finished airing by the time you rule. Do you have that number - or raw stats from which you or I can obtain it? If you do not, do you have a feel for what the number might be? Or do you know where that metric might be obtained?

You go on to point out that broadcasters are protecting their license, and that this is a strong motivator for advertisers to obey the code. Two points on this.

1. You also point out that this is a very rare thing (how may times has it happened, by the way?) and so it's probably not a serious concern for anyone.

2. There is a disconnect here - since the consequence of an advertiser's transgressions would be visited on the broadcaster - not the advertiser. Another reason why advertisers have little to fear from Ofcom.

I appreciate all you say about a lot of work happening behind the scenes, and your actions needing to be balanced and proportionate. I don't hink I'm not proposing anything to conflict with this.

You mention other bodies regulating specific industries via statutory powers. Could you direct me to a list of those, please? However, I don't understand the relevance of them to our discussion. Are you saying you delegate code enforcement to these agencies in some cases? Or something else?

On to the unresponsive complaint (my second to Ofcom). My first email to Ofcom on this was sent on 19th July, and your first response was 22nd October. In the MORE THAN THREE MONTHS between I sent SEVEN reminders. Elfed, being busy with your ASA move is an entirely unconvincing excuse which frankly, adds insult to injury.

Regards,
Chris

To Be Continued

Why Don't Bulletins Include all Complaints?

7.10.4

Hello,

I notice that your bulletins generally include reports of code breaches,
but in a few cases (e.g. A16 - Virgin mobile), include reports which do not.

It is my personal view that all complaints should be included.

Please clarify the criteria you use to decide what gets included.

Thanks & Regards,
Chris

11.10.4

Hi,

Historically only substantive cases are fully reported in the bulletin, with all other complaints being recorded as statistics.

Where a case (whether upheld or not upheld) involves a significant Code issue, it will be reported. Cases which attract large numbers of complaints, such as Virgin Mobile, are always reported. The
reporting system is likely to change with the delegation of advertising complaints to the Advertising Standards Authority (details on the Ofcom web site).

Regards,

Elfed Owens

16.10.4

... Are the other complaints, or any summary of them, made publicly available anywhere?
If not, would you consider doing so?

Thanks,
Chris

Why aren't TV Ads Certified OK Before Transmission is Allowed?

21.10.4

Folks,

The biggest lesson I've learned from working with Ofcom is that the best we can hope for is that you'll forbid an offending ad to be shown again in its current form.

Since you will generally take many weeks to process a complaint, the ad run could well be finished by that time, meaning that the entire complaints process is worthless and the efforts of complainants and Ofcom entirely wasted.

I have already asked you in a separate email why serious punitive damaged are not applied, and I look forwrad to hearing about that.

But it seems to me that the really sensible way to do this is to preview and certify ads before transmission is allowed. I guess that this would greatly increas running costs for whoever did the work. Has anyone at Ofcom considered this approach?

Thanks,
Chris

22.10.4

Dear Mr Wesley,

Most broadcasters use an organisation called the Broadcast Advertising Clearance Centre (BACC) to pre-clear ads so it wouldn't be true to say that they arrive on the screen unchecked. In fact, when the press reports that an ad has been 'banned by watchdog' they are often reporting what is in fact a pre-transmission decision by BACC, not us. It isn't in the interest of broadcasters, or advertisers, to incur Upheld decisions and while the system is not perfect (and in a free society probably shouldn't be too perfect as we don't have censorship to that degree). Ads which pose a serious risk of harm are pulled quickly by us if the BACC has overlooked a problem, but that is admittedly rare. Punitive sanctions are also rare but do happen. We aim to be proportionate to the risk of harm and generally speaking the major broadcasters do take their responsibilities seriously. With the proliferation of smaller digital channels and teleshopping it is compliance procedures which are often at fault within those channels. It's also important to remember that any penalties fall on the broadcaster, who has breached licence terms, not the advertiser.

Regards,

Elfed Owens

22.10.4

Hello Elfed & thanks for your response.

So, we have the broadcaster-funded BACC pre-checking TV ads,
and publicly-funded Ofcom processing complaints and banning ads.

I see how this works to minimize public costs.
Ofcom can afford to be much smaller by not pre-secreening all ads.

But the big problem with this system is this:
ads which slip through the BACC net - i.e. those which you subsequently ban
- have a long time on-air before being yanked.
In fact, with a seven week typical decision time from Ofcom,
many or most will have finished airing.

This, coupled with the fact that you almost always restrict action to just banning an ad,
leaves Ofcom with no effective role to play, doesn't it?
You're banning an ad which will probably have stopped airing anyway,
and the advertiser will have got away scott free.

Regards,
Chris

23.10.4

Dear Mr Wesley,

I think it would be a distortion of our role to say we just ban ads. If you've looked at our complaints bulletins a total ban is not that frequent but misleading ads are changed, at the advertiser's cost, in order to continue being aired. The checking process for future ads also becomes more onerous for repeat offenders. You have to remember that ultimately the broadcasters are protecting their broadcasting licence. Even if licences are rarely withdrawn (usually for very serious infringements) this does concentrate the mind. Also you should not understimate the impact of a even a small revision on an extended multi-million pound campaign, with spots booked in advance and related marketing built
around the mass advertising. Certainly the advertisers are sometimes very vociferous about changes but that is a dispute for them to take up with the BACC; what we do is interpret the Code in
the light of the evidence. Also, when an investigation is taking place an enormous amount of work is going on behind the scenes; these things are not done in a cavalier fashion, and our actions
have to have a sound basis in due process. Our actions try be proportionate and encourage best practice. Also, we try to regulate what goes on-screen but there are regulators for particular
industries, sometimes with statutory powers, who are better-placed and more empowered to ensure that products or services themselves do not risk misleading people. To expect the broadcast advertising
to do it all is starting at the wrong end of the chain, and this is not often adequately appreciated, although I appreciate that trtaditionally viewers do trust television advertising (partly
because it has been well-regulated).

We are in the middle of the move to the ASA at the moment and I can only apologise if we have missed some of your emails. The move is quite complex, involving migration and harmonisation of different
databases, as well as new premises. There may be breif hiatus but we will be up and running with our ASA colleagues in November. The Advertising Codes will be reviewed by the ASA in due course and I
think there will be opportunities for the public, including interested organisations, to express a view.

Regards,
Elfed Owens

23.10.4

Elfed,

Thanks for your further insights.

You are contending that upheld complaints require ad changes - and that these are costly, and constitute a major disincentive for advertisers to break the code.

In contradiction, I am assuming that most ad campaigns run for less than seven weeks, and will be over by the time Ofcom rules.

Do you have any data to support either case? Relevant data would be the minimum, maximum and mean average run times of TV ads. But the real killer metric would be the percentage of ads against which you uphold complaints which have finished airing by the time you rule. Do you have that number -
or raw stats from which you or I can obtain it? If you do not, do you have a feel for what the number might be? Or do you know where that metric might be obtained?

You go on to point out that broadcasters are protecting their license, and that this is a strong motivator for advertisers to obey the code. Two points on this.

1. You also point out that this is a very rare thing (how may times has it happened, by the way?) and so it's probably not a serious concern for anyone.

2. There is a disconnect here - since the consequence of an advertiser's transgressions would be visited on the broadcaster - not the advertiser. Another reason why advertisers have little to fear from Ofcom.

I appreciate all you say about a lot of work happening behind the scenes, and your actions needing to be balanced and proportionate. I don't hink I'm not proposing anything to conflict with this.

You mention other bodies regulating specific industries via statutory powers. Could you direct me to a list of those, please? However, I don't understand the relevance of them to our discussion. Are you saying you delegate code enforcement to these agencies in some cases? Or something else?

On to the unresponsive complaint (my second to Ofcom). My first email to Ofcom on this was sent on 19th July, and your first response was 22nd October. In the MORE THAN THREE MONTHS between I sent SEVEN reminders. Elfed, being busy with your ASA move is an entirely unconvincing excuse which frankly, adds insult to injury.

Regards,
Chris

23.10.4

Sorry Mr Wesley, I can't reply in detail at the moment, and I think you would be best advised to wait for the period of Code consultations when you could put forward all your concerns. I'm doing my best with my piecemeal responses but everything is in flux at the moment, there's a major switch to the ASA, and time is currently very short. I have to give complaints from viewers first priority, rather than speculation.

Regards

Elfed Owens

23.10.4

Hi Elfed.

I appreciate the time you have given me. What would be a good date to pick this up again?

Regards,
Chris

23.10.4

We should be live at ASA from 1st Nov. I should be able take my Outlook files over but by all means remind me. You have every right to raise your concerns and I can only apologise for any delays. It is worth looking at the ASA web site as their structure is very different from Ofcom's as is their Code (The CAP Code) and the process of harmonising these will be interesting.

Regards,
Elfed Owens

 

Your Comments

 

Dear Sir,

My experience with Ofcom has been very similar to yours.

I have been trying to persuade Ofcom to take action about BT's failure to maintain rural telephone boxes properly and about the excessive cost of reverse-charge telephone calls.

Ofcom has been completely ineffective. It will not challenge BT and it acts more like BT's public relations agency than its regulator.

I am currently trying to make a complaint about Ofcom to the Parliamentary Ombudsman.

Yours faithfully

Rex Hora.

 

 
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