Out-Law News 1 min. read
10 Dec 2010, 9:32 am
The ASA can order the removal of, or changes to, ads that break its code of practice. As part of a review of its procedures it said earlier this year that it might charge companies to take action against competitors.
ASA cases are of three types: those based on consumer complaints; those based on complaints from competitors; and those generated by the ASA itself.
It has now said that it thinks it would break the law to charge companies to complain about rivals' ads.
"Our preliminary work on competitor charging revealed that Section 28(2)(a) of the Communications Act prohibits Ofcom from charging for services it is under a duty to provide," said an ASA update on its review. "We have sought legal advice and believe that that prohibition extends to us; it would be unlawful for us to charge for investigating competitor complaints about broadcast advertising."
The ASA said in its review that it had conducted research on how much of its time was taken up by competitor complaints. It found that complex investigations stemming from competitor complaints took 104 days to resolve, rather than the 65 days taken for standard complaints.
"Although responsible for only a minority of cases, competitors' complaints are common in some sectors and, as the figures above show, do typically take longer than most other types of cases," it said. "We expect that our recommendations to speed up formal investigations will help us to resolve cases faster."
The regulator said that it might enforce stricter rules on when competitors can even make complaints.
"We are also considering insisting that competitor complainants provide documentary evidence that they have made a genuine attempt to resolve their concerns direct with the advertiser before we will agree to investigate," it said. "Our Complaint Handling Procedures require non-public complainants (e.g. competitors) to endeavour to resolve their differences, wherever possible, direct with the marketer or through their trade or professional organisation. We were interested to note from our ‘Waiting time’ analysis that only one of the 19 competitors involved in that analysis appeared to have done that."
