Litigation Portal: The Polish Advertising Council (Rada Reklamy) has been in operation for over four years. Can you say after that much time that self-regulation of the advertising industry works?
Konrad Drozdowski: Clearly there is growing awareness of the existence of the organisation as one that safeguards certain business principles. The Advertising Ethics Code is essentially a set of rules for business coexistence, furthering the interests of consumers and promoting competition. There is no one anymore in the marketing and advertising industry who is not familiar with the Advertising Ethics Code, and that is a major success. When we started out, the concept of self-regulation was vague and the code existed only on paper. Now companies know the code and also suggest ways in which it could be improved.
Self-regulation is essential, because the law itself cannot eliminate all improper advertising. The Office of Competition and Consumer Protection reviews ads in terms of unfair market practices, and the National Broadcasting Council protects minors as an audience for advertising, but we also address issues related to world view, social coexistence and discrimination.
Public institutions often seek our opinion before or during a proceeding. We cooperate with the Ombudsman, the Children’s Advocate, the National Broadcasting Council and the Office of Competition and Consumer Protection, as well as the police and the prospection service. This demonstrates that self-regulation has already become a recognised feature of the advertising landscape, serving not only the council members but also public agencies.
Beyond that, self-regulation is also an excellent supplement to the law. In countries where self-regulation by the advertising community functions properly, it is not necessary to enact extremely detailed laws. It was a great success for us to demonstrate that we are needed and that we take an affirmative initiative.
Are there many appeals from resolutions of the Advertising Ethics Commission?
Under our procedure, we do not have regular appeals, but only extraordinary review. An appeal is possible only if there are new facts or evidence that was not available when the decision was adopted. If, for example, a new study has been released that clearly demonstrates the effectiveness of a pharmaceutical product, the appeal board would probably find that the case should be reconsidered.
One of the main advantages of self-regulation is the speed of the procedure. The existence of a regular second instance would prolong the whole proceeding, because I am sure that everyone would appeal from an unfavourable resolution.
What is the effect of such resolutions? Is the advertising withdrawn from the market?
We do not have complete data, but based on our observations the great majority of advertisers comply with our decisions, sometimes before the proceeding is even completed. After receiving information about a complaint, the advertiser will often commence an internal procedure, and the advertising may then be revised even before the Advertising Ethics Commission meets to consider the case.
We had an example of an insurance company that announced on the Internet that if offers the cheapest automotive insurance (liability and property coverage). When a complaint was filed by a consumer stating that he was offered insurance for less by another company, the advertiser admitted that without full access to the premiums charged by competitors, it could not back up its claim. Besides, an insurance product is so complicated that the term “cheapest” might not be meaningful in all permutations. The company withdrew the ad, because a reasonable advertiser wants to head off potential problems.
Our work partly involves catching oversights or errors. One ad, for example, was broadcast in too early a timeslot. It was supposed to be broadcast later in the day, but it was bundled in a package with a TV series for which repeats were broadcast in the morning. In that case the violation resulted from an innocent mistake that was easy to fix.
The Advertising Council deals with many issues without receiving a formal complaint. Often consumers will just ask questions, which we then try to forward to the advertisers. This allows doubts to be cleared up at a very early stage. This is an essential element of our activity, if perhaps less visible.
In addition, we educate advertisers, media and consumers. All of the resolutions of the commission also serve as a kind of roadmap for how to interpret the code in a specific situation. The code is worded fairly generally, which is good because it is impossible to predict everything, particularly given the development of electronic media. Self-regulation makes it easy to adapt to changing conditions. Of course, the legal system also evolves to reflect these changes, but by necessity the legislative process is slower.
Resolutions of the Advertising Ethics Commission are implemented even by companies that do not participate in the self-regulation system and are not members of any of the trade associations in the advertising industry. If we request an advertiser to address a complaint, we always get a response. Out of over 1,000 complaints we have handled, there were just a few that went unanswered. We also observe a willingness to exchange views, which is invaluable for growth of the system of self-regulation in Poland, and helps to improve the Advertising Ethics Code.
Are even the most absurd complaints considered?
All complaints that meet the formal conditions are submitted to the Advertising Ethics Commission. The office does not assess in any way whether they are well-founded or not, and it does not weed out those that seem trivial. There have been occasions where complaints at first blush appeared absurd but ultimately proved to be entirely justified. In some cases we might also have found that the decision was obvious, but the complaint must still go to the commission, which is an independent body.
As the administrative wing of the Advertising Council, we play a double role in this respect. After all, we represent the world of advertising, and our members are associations who pay dues and licence fees for ethical advertising certificates, so we would have a conflict of interest. The arbitrators always check in any event whether there is a conflict of interest. The parties can do the same, and seek to remove an arbitrator.
Aren’t you worried about a flood of complaints? They are free, and the number grows year after year.
The system is fairly flexible. Besides, a large number of complaints does not necessarily require a large number of sessions. One controversial campaign may generate hundreds of complaints. In Austria once there were 1,200 complaints about a single campaign. While such complaints must be processed and put in order, we are prepared to handle any number of complaints—not an infinite number, but certainly very many. Recently the number of arbitrators was increased from 15 to 30, so we have a greater number of panels available.
It is hard to say how many complaints we should ultimately expect. In Spain, for example, where complaints more often go to court, there are some 150–170 per year. In the UK there are 24,000. To a certain degree the number of complaints reflects the strength of the civil society. In the UK people have a sense of community and feel that they should defend certain values—even the reputation of a profession.
In the UK one campaign by a fast-food chain generated 1,600 complaints in the course of three days. Some viewers thought that the ad was offensive to hotline staff, who were portrayed as the sort of people who stuff themselves on the job. Others objected to promotion of poor eating habits among children. These are the concerns of a civil society that Poland is still far from reaching. On the other hand, advertising in Poland is fairly polite.
How are the resolutions adopted? For example, why did the commission find that the slogan “trade in an old one for a new one” was not offensive to women, while a campaign in which a young man frowns when he sees an old woman undressing was held to be offensive to the elderly?
That’s always difficult, and the debate can go on for hours. Sometimes the arbitrators file dissenting opinions. But the panel is made up of three arbitrators, so there is always a decision. In each case it is important to consider the advertisement as a whole, not a slogan in isolation that might give rise to various associations among different audiences. When and where the content is presented is also important.
We handled billboard advertising where the location of the display was a factor in the number of complaints and the decision by the commission. Outdoor advertising cannot be turned off like a radio or TV set, and offensive content is visible whether you like it or not. That is why outdoor advertising stirs up the strongest emotions and mobilises people to file complaints.
The decision-making process takes a great number of factors into consideration and relies on the sense of the arbitrators, who are experts in the field of marketing and advertising, which makes them quite sensitive to the issue of discrimination. The commission has often found advertising to be discriminatory on the basis of religion or sex. These are indeed the most frequent cause for complaints.
The very fact that complaints are made shows that the advertising is pushing the boundaries of acceptability. In the example you mention, as it happened, the commission in one case found that boundary had been crossed, but in the other not. It should be borne in mind that the boundary itself is very fluid within the society. Different audiences find different content to be acceptable. The content, the form, and the medium used are all important.
Currently our members include 10 trade associations, made up of advertisers, media, advertising agencies, and media houses. Soon we will have 12 member associations. Together they represent most of the media and advertising market in Poland. That gives us the right to speak out about advertising in Poland. We have a provision in our statute that authorises us to take a position on advertising that is distributed in Poland, which enables us to address advertising created by non-members. Thanks to that provision, we can strive to raise the standards for advertising in Poland. I think we do.
Interview conducted by Justyna Zandberg-Malec