Issue 3, 18th December 1995: Legal, Decent, Honest and Better?
By Sonya Clarke.
Computing, Science and Technology, SciFi, Sport(13th).
The libel action brought by McDonalds has become the longest civil case in English legal history, totaling 199 days to date. It is expected to drag on until next summer and current costs of GBPœ10m may triple.
An EU-wide ban on cold calling can be expected if the demands of the European Parliament prevail and become legislation.
Allen & Overy will launch their bit of cyberspace this month.
The University of Central Lancashire is holding a seminar for solicitors and legal executives on Developing Legal Practice using Telecommunications on 31st January 1996.
Sweet & Maxwell now produce a legal information database on CD Rom.
UK advertising law comprises the common law restraints of defamation and intellectual property rights and the Control of Misleading Advertisements Regulations 1988, which implemented EU Directive 84/450. The Regulations give the Director General of Fair Trading, the Independent Broadcasting Authority and the Cable Authority the right to intervene when a complaint of a misleading advertisement is received. An injunction to restrain publication of the advertisement is possible if it deceives or is likely to deceive any person and if this affects their economic behaviour or injures a competitor. Such intervention is only likely when all other options have failed.
Pre-eminent among these alternatives is the British Code of Advertising Practice and Sales Promotion, which is issued and monitored by the Advertising Standards Authority (ASA). The latest edition of the Code was published this year. The overriding concept is of general fair play and lawfulness (not unreasonably denigrating a competitor, not misleading the consumer, etc), decency (such as avoiding racially or sexually offensive material) and honesty.
As it is a self-regulatory body of the advertising industry, the ASA cannot fine an advertiser who breaks the Code. The ASA can only request that the offending advertisement be withdrawn. In practice, this works because of the strength of public opinion---remember the Benetton baby---and the fact that no magazine or broadcaster would carry an advertisement that broke the Code.
In these post-modern days, when most advertisements use familiar music or images, advertisers must take care not to infringe copyright. Advertising slogans are generally too short to be copyright works, so rival advertisers can copy each others' catch-phrases. The copying of brand names, however, will often infringe trademark legislation.
The relaxation of UK rules on comparative advertising means that the registered trademarks of others can be used provided that use is in accordance with ``honest practices.'' The limits of this definition have yet to be clearly defined by case law. A criticism of the new common position of the EU is that it is similarly ambiguous and its provisions contradictory. Comparative advertising should, therefore, be undertaken cautiously. The lengths to which the brand name of a competitor can be exploited are undefined.
In the UK, a general policy of good standards of advertising as advocated by the the British
Code is the best track for any advertiser to follow. There can be a conflict between these
standards and effective marketing, however. The Code outlaws the use of violent or shocking
images merely to attract attention, but ultimately, even if an advertisement is withdrawn,