Letter from the Independent Review of ASA Adjudications

The Independent Reviewer of ASA Adjudications

5^th Floor, 21 Berners Street, London W1T 3LP

Fax 020 7580 7057 Email indrev@asbof.co.uk

28 September 2009

Kevin Lister Esq

Brooklyn

Park Road Crescent

Nailsworth

GL6 0HZ

ASA Case A09-101952: Airbus - Request for Review

In your letter of 9 September 2009 (received on 17 September) you asked me to review the ASA’s decision not to investigate your complaints about advertising in National Geographic by Airbus for a photographic competition which it was sponsoring. You sent me an email with more information on 22 September. I have now been able to consider what you wrote and to review the ASA file on the case.

Your complaint was that the Airbus advertisement was misleading because the advertiser was claiming to be trying to minimise environmental impact and reduce greenhouse gas emissions despite the fact that the aviation industry would always operate in a way detrimental to the environment. You were also concerned that the points in the advertisement about investment in biofuels took no account of the fact that the production of most biofuels led to deforestation and other consequences detrimental to the environment. I am aware of the interest taken by your MP in the case.

My understanding is that the Council’s view that there were no grounds for taking further action upon your complaints was based upon a judgement that readers of National Geographic would understand that the advertiser was not claiming that the aviation industry had no adverse impact on the environment. The Council considered that the advertisement was therefore not in breach of the relevant Code provisions. The Council was aware of your view and your concerns but unanimously reached a different judgement and concluded that the concerns which you had expressed about the advertisement did not justify further investigation. I regret that I do not share your view that the judgement of the Council was either unfair or unreasonable. Furthermore, after reading the ASA file, I am satisfied that the Council did consider the issue fairly and in accordance with its normal procedures.

In your statement of case to me you argue that the Council’s judgement was incompatible with clauses 49.1 and 49.3 of the Code. I note from the file that you drew the ASA’s attention to that argument, with the result that the ASA Executive decided then to refer the case to the Council. It seems to me therefore that the Council was not persuaded by your argument, having taken the view that readers of National Geographic would be unlikely to regard the advertisement as a claim that Airbus was taking actions which would lead to absolute, rather than relative, reductions in greenhouse gas emissions. Again I am not persuaded that the Council has acted either unfairly or unreasonably. Nor am I persuaded that the Council has itself acted in breach of the advertising Code. It is, after all, required by clause 1.4b to assess conformity with the Code “according to the …probable impact when taken as a whole and in context”.

It is by no means unusual that complainants and the Council reach differing conclusions on the same material, especially in areas where those conclusions must to a large extent be matters of judgement rather than proof, such as the way in which an advertisement is likely to be perceived. But it is the Council which is charged with the responsibility for making judgements about how a particular advertisement is likely to be perceived by those who see it and whether it is in breach of the advertising Code. The Council has to strike a balance between preserving freedom of expression and ensuring that such freedom is not seriously harmful to the interests of others. I am satisfied that the Council was aware that the fact that an aeronautics company was playing up what it saw as its environmental credentials would be distasteful and objectionable to some. It seems that the Council nevertheless felt that the advertisement was unlikely to mislead readers of National Geographic.

I assure that I am not seeking to defend the ASA and its Council. But my role as Independent Reviewer under the advertising Code requires me to understand the basis of the judgements reached by the Council and to form my own view as to whether a complainant has produced persuasive arguments that the Council has acted unfairly or reasonably. It would be wrong for me to seek to substitute my own judgement for that of the Council even if from time to time I might be so inclined. My responsibility is to determine whether a valid case has been made for asking the Council to reconsider a decision not to investigate having concluded that a complainant has succeeded in showing that decision to have been substantially flawed or because the complainant has submitted relevant new evidence.

I am not persuaded on this occasion that the Council has made an unreasonable or flawed decision within the proper limits of its own responsibilities. Nor do I think that your letter and email to me have brought to light any fresh facts or considerations likely to cause the Council to change its mind. I have therefore concluded that there are no grounds for inviting the Council to reconsider its decision not to investigate your complaint about this advertisement.

The review process under the Code has now been concluded and I shall close my file on the case. I know that this decision will be a disappointment to you and for that I am sorry. I realise that you feel very strongly about the impact of the aviation industry on the environment.

I note from the file that the ASA has ensured that the advertiser is aware of the complaints which this advertisement has prompted.

(Sir John Caines KCB)