ASA semantics and lies
But here’s the interesting section:
One of the bloggers on whose blog the ads appeared has raised concerns about us contacting him as part of our investigation. We have long found it useful to ask, in confidence, publishers of ads subject to ‘offence’ complaints for their views, because they can give us a valuable insight into whether or not their readers are likely to be offended. They are not the subject of our investigation, as we have made clear to them in this case, and they are not compelled to respond.This sounds so utterly reasonable that His Grace must have been completely mistaken by both the tone and content of their initial communication. Silly him: what a stupid pile of ash to have got so scattered about and worked up over the sweet ASA’s polite request for titbits of information to provide them with important ‘valuable insights’. How unnecessarily histrionic of him to have used the word ‘investigation’ when none has been instigated and he is not even compelled to respond, as they ‘made clear’.
Sadly, this is untrue.
The ASA may indeed find it ‘useful to ask, in confidence, publishers of ads subject to “offence” complaints for their views’. But so much hangs on this ‘in confidence’, doesn’t it? If nothing is ever discussed in the open or scrutinised by the light of day, errors remain concealed and ‘evidence’ goes unchallenged. In this case, for example, we may never have discovered that the named complainant (the ‘Jewish Gay and Lesbian Group’) actually never complained at all. The ASA failed to check the validity of a complaint made in their name by an individual who had absolutely no authority to do so. Forgive His Grace, but that’s kind of important, isn’t it? How many other complainants are misleading and manipulating the ASA in order to pursue a personal political campaign? Why is the ASA not more diligent in discerning this?
To state that they are merely seeking ‘valuable insight into whether or not (His Grace’s) readers are likely to be offended’ is a fatuous assertion. What publication is going purposely to publish material which its readers will find offensive? Moreover, what publisher is going to incriminate him/herself by formally admitting that they are publishing material they know to be offensive? The ASA state that His Grace is not the subject of their investigation. He never said he was: he has made it clear that he has been asked to comply with a ‘formal investigation’. But this is semantic. That he is not himself the subject of a formal inquiry was, apparently, ‘made clear’ to him, and also that he is ‘not compelled to respond’.
His Grace was trying very hard to adhere to the ASA’s
The attached summarises a complaint we have received about the enclosed advertising, which appeared on the ‘Archbishop Cranmer’ blog. The complaint falls under the harm and offence section of the British Code of Advertising, Sales Promotion and Direct Marketing. Please explain why you thought the advertising was suitable for your readers and whether readers have complained to you direct. Please respond by 21st May at the latest. Please keep this correspondence confidential. If you require a postal copy please let me know.Does anyone read in this terse email any mention of His Grace not being compelled to respond? Does anyone detect a tone of asserted authority? Certainly, there are lots of ‘pleases’, but do these not merely embellish what read like a series of demands? Is there not a clearly-stated deadline by which he must respond? Is not that deadline emphatically imposed? Why must His Grace respond by 21st May at the latest if there is no compulsion to respond at all? Why is ‘at the latest’ not swiftly followed by ‘but please feel free not to respond, for you are under no compulsion to do so’? And does not ‘Please explain why...?’ constitute a request for self-justification, and so investigation?
And further, consider these phrases from letters which were attached to this email:
1. 24 complainants, including the Jewish Gay & Lesbian Group, challenged whether the claim “70% of people say keep marriage as it is” in ads (a), (b), (c) and (d) was misleading and could be substantiated.
2. Ten complainants objected that ads (a) and (c) were offensive.
3. Three complainants objected that ad (a) was misleading, as they did not believe it made clear that the aim of the online petition was to bar same sex marriage.
Investigated under CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation) and 4.1 (Harm and offence).Does anyone read anything here which sounds like a polite request? Please note the use of the word ‘investigated’, for His Grace was asked to respond to Issue 2 only. Of course His Grace is not personally being investigated, but he is clearly coming under some considerable pressure to submit, comply and cooperate with a formal investigation. The word ‘investigated’ appears quite prominently before what reads like a series of charges which one feels ought to be followed with the phrase ‘You have the right to remain silent...’. This is manifest intimidation. How is it ‘made clear’ that His Grace is not being investigated or compelled to respond?
And further, he is infomed:
Who we are
The ASA investigates complaints to ensure that non-broadcast marketing communications comply with The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (The CAP Code), prepared by the Committee of Advertising Practice (CAP). We also investigate complaints to ensure that TV and radio advertising complies with The UK Code of Broadcast Advertising (The BCAP Code). The Government, the Office of Fair Trading and the Courts recognise the ASA as the “established means” of regulating non-broadcast advertising.This isn’t a friendly chat over a coffee which might elicit ‘valuable insights’. The ASA mention ‘Government’, ‘Courts’ and ‘established means’. If they have no teeth, their gums will clearly suck you to death.
Further still, His Grace was told:
The investigations process
We will consider the complaint under rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation) and 4.1 (Harm and offence) of The CAP Code (attached)...
We intend to deal with the complaint as a formal investigation, which means it will be considered by the ASA Council. We will then draft a recommendation for the Council based on your response to us. Once the Council has made a decision, the adjudication will be published on our website.
What you need to do
We need you to respond to the complaint. The CAP Code requires marketers to avoid causing serious or widespread offence. We require you to explain your rationale for the ad and comment specifically on the points raised in the attached complaint notification. We will be happy to receive anything else you think is relevant.Now, call His Grace obtuse or pedantic if you wish, but this plainly says: ‘We need you to respond to the complaint.’ This statement is not qualified. While these attached letters from the bundle were addressed to a third party, His Grace was manifestly expected to glean from them precisely what was being demanded of him. This was the subject of his Q8 in his response to the ASA: it is not ‘made clear’ at all.
And then we get:
It is for you to decide what to submit, but we will need to see robust documentary evidence to back the claims and a clear explanation from you of its relevance and why you think it substantiates the claims. It is not enough to send references to or abstracts of documents and papers without sending the reports in full and specifically highlighting the relevant parts explaining why they are relevant to the matter in hand.And, as mentioned above, His Grace was charged specifically with:
2. Ten complainants objected that ads (a) and (c) were offensive. In responding to this point it may assist you to know that the complainants believe the ads are homophobic and offensive.
Your response deadline
The ASA’s effectiveness depends on resolving complaints fairly and swiftly. An unreasonable delay in responding to our enquiries may be considered a breach of The CAP Code. So that we can conclude this matter as soon as possible, please respond in writing, preferably by e-mail to firstname.lastname@example.org within SEVEN working days. If you need more time, we may be able to agree to one short extension, but you will need to contact us within the deadline to explain why you are unable to respond sooner and agree a timetable for your response.
If you are not the right person to deal with this letter please tell us and pass the letter on to someone who is. If we do not receive a reply from you by 21 May, we may add your lack of response to the other issues that we are investigating which will form part of any formal published adjudication.Since His Grace has had to assume that parts of this communication (the request to respond to Issue 2) apply to him (it is not specified in the covering email), it is not unreasonable to assume that these demands and deadlines also apply to him. There is manifestly an intimidating request for ‘robust documentary evidence’, followed by a threat that non-response is ‘considered a breach of The CAP Code’ and may itself be subject to investigation.
So, contra the ASA's statement on this matter, all that is ‘made clear’ in this communication is that His Grace is expected to comply and cooperate with a ‘formal investigation’, and submit to the asserted authority of the ASA as recognised by ‘the Government, the Office of Fair Trading and the Courts’. It is categorically not stated anywhere that he is ‘not compelled to respond’; indeed, there are so many suggestions to the contrary that the ASA appear not merely to be obfuscating with semantics, but lying.