Advertising – when it pays to challenge an ASA ruling?

The Advertising Standards Authority has recently overturned one of its own adjudications.  This is quite a noteworthy event and does not happen very often.  A television ad by Cycling Scotland showed a young woman cycling down the road with on-screen text saying “See Cyclist Think Horse”. Five people challenged if the ad was irresponsible and harmful, because it showed a cyclist without a helmet or other safety attire, and she was cycling more towards the middle of the road rather than close to the curb.

The ASA upheld the complaints to a storm of protest from various cycling charities and Cycling Scotland submitted a Request for an Independent Review.  The Independent Review procedure can be requested on two grounds – where additional relevant evidence comes to light that was available at the time, or shortly after the ad appeared but could not reasonably have been submitted in the course of the investigation and/or where it is alleged that there is a substantial flaw in the ASA’s adjudication or in the process by which that adjudication was made. This particular review was under the latter part.  The ASA withdrew the initial adjudication and has now published the revised adjudication.  So what caused the problem?

I think that to an extent, the ASA was stuck between a rock and a hard place on this one.  The Highway Code says that a cyclist “should” wear a helmet.  However, it does not say “must”.  The fact that the Highway Code in itself fudges the issue is unhelpful.  Most lawyers would take the view that “should” is a pretty strong exhortation.  The Code does not say “can” or “you are advised to” or "it would be a good idea to".  Anyway, Cycling Scotland argued that there were documented potential downsides to wearing a helmet (see the CTC’s report) and that it was not a legal requirement in any event.  In addition, the positioning of the rider on the road was reasonable and realistic and followed national standards.

Clearcast, which pre-vets all broadcast advertising in the UK, said that the advertisement was focusing on care and safety in the form of giving space to cyclists on the road, and was communicating  a positive message in that respect.  In the end the ASA concluded that because it was not a UK legal requirement for cyclists to wear helmets and because the ad depicted a range of real life situations in which motorists might encounter cyclists on the road to educate them about the risks to cyclists’ behaviours, the ad was neither socially irresponsible nor likely to condone or encourage behaviour prejudicial to health and safety.

One wonders why the ASA did not reach this conclusion the first time around when it first considered the complaints and why it did not attach more weight to the CTC report.  It illustrates the limitations on the ASA staff’s expertise – they cannot be experts on the law in all areas, or on all sectors, and so sometimes reach controversial conclusions. Cycling Scotland received high profile support, including from MSPs and MPs.  The ASA’s revised ruling also comes against the backdrop of a ruling in Germany that it was not negligent to cycle without a helmet, and therefore a cyclist who was injured in a collision with a car was not contributorily negligent.

Lessons to be drawn: the ASA can make mistakes.  It is sometimes asked to weigh up competing priorities and evidence.  But, the independent review procedure exists, the ASA will reconsider its decisions where the criteria for a review are met, and therefore it is well worth organisations considering asking for a review if they feel strongly about an adjudication having gone the wrong way.