The tight-knit and wide-ranging protections for the [2012 Olympic] Games and associated intellectual property and trade marks rights are details in the newly published Advertising Law & Regulation, by Giles Crown, partner and head of media, brands and technology at law firm Lewis Silkin, Oliver Bray, a partner at law firm Reynolds Porter Chamberlain, and Rupert Earle, a partner at Bates, Wells and Braithwaite.
The book covers virtually the entire range of legal issues associated with advertising, from consumer protection to comparative advertising to obscenity, indecency and racial hatred and contempt of court. It also tackles individual areas such as children and advertising, food and drink, fuel and energy, health and cosmetics, public telephones and video and computer games, as well as all the relevant regulatory codes.
It even has a short section which points out that there are regulations covering the running of massage or special treatment establishments – which includes those for tattooing, chiropody, and cosmetic piercing – in Greater London.
The subject of advertising law and regulation is certainly wide enough, and has grown wider since the first edition of this book appeared, 10 years ago, because, as the authors say in the Preface: “Governments and the European Union have increasingly seemed to regard restrictions on advertising as an easy answer to a wide variety of social ills.”
But the authors, and the teams at their firms, and others, who assisted them, have together produced a comprehensive and well written up to date guide to their subject, despite the unpromising nature of some of the material with which they have had to deal.
This is, in effect, and encyclopaedia of advertising law and regulation, and will be of great use to anyone involved in the advertising and marketing industries.
Media Lawyer
March 11
The first guide to advertising law I remember was published in 1961 by W.J Leaper. It was, in its day, the seminal work on the subject. Not that in 1961 there was much law on the subject. The Advertising Standards Authority (ASA) had not come into existence nor the plethora of home-grown and EU-inspired law that has developed since.
Much of the law in those days revolved around famous cases, particularly cases of defamation arising from advertisements. The most notable of these cases, perhaps, was Tolley v J.S Fry and Sons Ltd [1931] AC 333, the press cuttings for which I still have in a file.
All that has changed. A succession of governments, including some allegedly devoted to deregulation, have created over the last 50 years a panoply of Law. To it must be added the extensive self-regulatory controls, and particularly those presided over by the ASA. It is timely that, as I write this, the British Code of Advertising, Sales Promotion and Direct Marketing has been extended to cover areas of on-line marketing, such as websites.
When W.J. Leaper was writing in 1961, advertising law was not a recognised legal specialism. Today it is, and several of the authors and contributors are leading members of the Advertising Law Group of specialist practitioners, notably Giles Crown, Rupert Earle and Charles Swan.
The thoroughness of this review of the law relating to advertising is demonstrated by the large number of the lawyers who have contributed to the work, including teams from Lewis Silkin, Reynolds Porter, Chamberlain and Bates Wells and Braithwaite, together with a number of members of counsel.
The resulting work is much larger than the first edition, authored solely by Giles Crown, which I find it hard to believe was published 13 years ago. A second edition has been long in the coming but worth the wait.
In order to help readers with this mass of detailed information, the authors have very helpfully divided the book into three parts.
The first part covers general legal areas covering such all important areas as copyright, trade marks, data protection and comparative advertising.
The Second part sets out a comprehensive listing of specific advertising rules. Some of these are mainstream areas such as food and drink advertising and financial advertising. Others are more obscure, such as lucky charms and clairvoyants.
The third part sets out the regulatory bodies relevant to advertising, most notably the ASA and the Committee of Advertising Practice, but also other important players, including OFCOM and PhonePayPlus, the OFT and the Medicines and Healthcare Products Regulatory Agency.
The scourge of law book writers is that no sooner has a book been run off the press than one finds further developments have taken place, both in terms of legislation and case law. So, for example, our authors have been unable to take on board the Consumer Credit (Advertisements) Regulations 2010 which had to be issued twice in the year because of drafting defects first time round.
On the European front, the book was unable to cover three very recent decisions of the European Court of Justice on the EU Unfair Commercial Practices Directive- decisions which look like having a profound effect on Pan-European marketing.
Yet, overall the book is right up to date in terms of both law and advertising practice. It is particularly good to have a chapter dedicated to digital marketing and advertising. As the authors comment, contrary to common perceptions, the internet is not an unregulated medium and wasn’t unregulated, even before the recent extension of the ASA’s remit. And as the chapter well illustrates the regulation of the internet is a fast-developing phenomenon.
The book will be invaluable to legal professionals. I know of one solicitor who already believes he has saved himself several hours work by using the book.
It should also find its way onto the bookshelves of advertising and marketing professionals, for whom increasingly the measure of professionalism is, in part, a reflection of their understanding of the regulatory and framework affecting their business.
The authors are to be congratulated on a first rate piece of work. I hope it gets the recognition it deserves.
Business Law Review
May 2011
Advertising is based on happiness … and the law
Readers of this Journal who are fans of the TV series Mad Men will be well aware of the fact that in the 1960s the advertising industry began to flourish and, along with it, its increasing regulation. For Don Draper, the main constraints were those relating to tobacco advertising. For modern Don Drapers, it can well be said that legal constraints affect any type of advertising and almost any product.
In the past few years, advertising law has changed significantly. First, the development of new media has attracted investments and urged the creation of new types of advertising to catch consumers’ attention. In consequence, legislation has developed too. The powers of regulatory bodies have been widely increased: the latest example (with effect from last March) has been the extension of jurisdiction of the Advertising Standards Authority to advertising claims made on non-paid-for advertising space online, such as brand owners’ own websites and brand activity on social networking sites. Increasing attention has also been paid to the interpretation of the boundaries of advertising law. In this respect, EU law has played an important role, in particular in the field of consumer protection, which has been harmonized widely following the numerous directives issued to date. EU case law has had a deep impact on the development of advertising law, too: the decision of the Court of Justice of the European Union in L'Oréal has been discussed widely, and the upcoming judgment in Interflora is awaited with a great deal of interest (not to say anxiety).
From the foregoing, it is therefore apparent that a comprehensive treatment of advertising law is much needed and Advertising Law and Regulation provides it.
The book is composed of three parts. The first offers a concise yet exhaustive overview of the main areas of law which are touched upon by advertising law: from regulatory sources to contracts, from IPRs to discrimination and obscenity, this part well highlights how heterogeneous and complex are the issues relating to advertising. The second part provides, in alphabetical order (from ‘A’ for ‘accountants’ to ‘V’ for ‘videos and computer games’), a useful resource to revert to when dealing with sectors which attract specific extra regulation. The final part is a summary of the main regulatory bodies which have competence to ensure compliance with the relevant applicable provisions.
The main value of this book, which is authored by three leading advertising practitioners, is its comprehensiveness, as well as its practical approach. As a general observation, and given the frequent changes affecting advertising law, it would be desirable to keep this work as up-to-date as possible. The two editions of the book were, however, published 10 years apart. This pace may not be ideal for a practitioners’ guide. In the absence of more frequent editions, it may be advisable to provide purchasers of the book with access to an area of the publisher's website containing updates of the most recent legal and regulatory reforms, as well as decisions relevant to this area of the law. This may help increase the value of this work, as well as its relevance to advertising practitioners and creators.
Despite this, Advertising Law and Regulation represents an excellent starting point for the planning of advice and litigation strategies in the field of advertising. The structure of the various chapters is such as to provide an essential and yet thorough overview of both substantial and procedural implications relating to specific areas, thus offering immediate responses to doubts which often arise when first dealing with new advertising issues in daily practice. The level of detail (for instance: copyright issues pertaining to advertising) is not particularly deep but, in any case, this is not what the book seeks to provide. Advertising Law and Regulation is in fact a compass aimed at providing practitioners and admen with the coordinates necessary to safely navigate the tumultuous sea of advertising law.
In a memorable scene of Mad Men, Don Draper explains: ‘Advertising is based on one thing: happiness. And do you know what happiness is? Happiness is the smell of a new car. It's freedom from fear. It's a billboard on the side of a road that screams with reassurance that whatever you're doing is OK.’ With Advertising Law and Regulation at his side, every Don Draper of this world (or, at least, the UK) may indeed feel OK from the point of view of compliance with advertising law and regulations … at least until the next change of the law.
Journal of IP Law & Practice by Eleonora Rosati.
August 2011.
The second edition of Advertising Law and Regulation gives a comprehensive overview of the laws and regulations (including case law) on advertising in Great Britain, with some continental European perspectives also covered. The book isdivided into three main parts. Part 1 deals with general legal issues ranging from private law to criminal offences. The authors broadly discuss issues related to consumer protection and unfair practice, defamation, intellectual property rights and privacy, as well as comparative advertising, gambling, discrimination, indecency and so on. They also provide considerable discussion on digital marketing and advertising. Part 2 covers specific advertising rules for different products or businesses based on the CAP and BCAP codes as well as the relevant regulations in each area. The authors make it easy for readers to browse by placing the topics in an alphabetical order. A significant number of pages are devoted to financial promotion, food and medicine, but the authors also cover interesting topics such as ambush marketing, political advertising and even the coming London Olympic Games. Part 3 focuses on the regulatory scheme in the United Kingdom that distinguishes broadcast from non-broadcast advertising. The authors also provide a brief introduction to the advertising laws of several other countries. While this coverage is very comprehensive, the book is perhaps missing deeper analysis from theoretical and human rights perspectives. However, this by no means undermines its quality or the authors’ efforts. For a book that aims at practitioners, lawyers or not, the authors have done an excellent job of introducing the relevant laws clearly and identifying their application to different products or services.
It is interesting to note that the authors do not attempt to define the over-arching term “advertising” (or “advertisement”), a problem that underlines the difficulties of the relationship between advertising and the law. In a way, advertisements implant ideas into people’s minds. “Advertising” involves more than merely filling a column in the print media or creating a film for the visual media. In the digital era, purchasing the right to be shown as the first result in a Google search is a form of advertising, as is placing a product in a movie (such as the BMW driven by James Bond). In addition, advertisements are sometimes integral parts of products themselves: food labelling is a good example. It is difficult to apply a common definition to cover all sorts of commercial or non-commercial communications that are intended to promote an idea, a product or a service.
Moreover, advertising is entrenched in daily life, and it is at the crossroads of several legal fields. Given the nature of the many products and services being promoted, advertising is connected with a variety of regulations. In the 21st century, it also faces the challenge of the internet, while a significant amount of advertisements are still placed in traditional media. Globalisation adds an additional perspective, as advertisements targeted at one region might make impressions in other parts of the world. As the authors duly note in the preface, there are concerns about the freedom of commercial expression. Yet there is also a demand to curtail misleading information in advertisements. In some places, even governments are heavy users of advertisements for public propaganda. As Tim Lefroy, the chief executive of the Advertising Association, duly observes in the book’s foreword, “advertising (especially good advertising) is about taking risks and pushing the boundaries”. It is then down to the law to set limits.
From this view, advertising law should touch upon the fundamental values of a society. For example, an advertising campaign that makes fun of Adolf Hitler may mean little in some parts of world but would be deeply offensive to many Europeans. Singapore’s Code of Advertising Practice gives a list of social and family values as general principles that must not be transgressed (such as by downplaying the importance of patriotism and national unity, distorting the perception of equality, or downplaying the importance of the family as a unit and the foundation of society).1 In some countries, political or religious ideologies might necessitate certain advertising regulations. In contrast, advertisements in the United States can be seen as a kind of “commercial speech” protected by the First Amendment.2 From this light, it is interesting to compare the differences between advertising regulations in different jurisdictions. These differences provide fertile ground on which academics can make further investigations from various perspectives.
As influential as advertising is in our daily life, advertising law has not received its due in the past. This book not only offers very good access to and a keen understanding of the relevant rules in the United Kingdom for those who practise in the area, but it might also provide specialists in other areas with a different angle on problems associated with advertising. Financial regulatory lawyers, for instance, should find that the book offers a view on specific rules related to financial promotion from the perspective of advertising law. A foreign lawyer might also find this book useful as the authors create a good analytical structure to explore advertising law in any other country. This is where I find the book particularly fascinating.
Journal of Business Law.
Christopher CHEN Chao-hung
Singapore Management University