Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Until 1999, political advertising was subject to some clauses of the Code (Rule 4.1, offensiveness) but exempt from others (including substantiation and misleadingness). The Conservative Party’s 1996 campaign, which featured Tony Blair with ‘demon eyes’, was a well-known example of an ad that was considered to have caused offence (Conservative Party, October 1996).
But, in 1999, the Code was changed to exempt entirely any marcom, whenever published, whose principal function is to influence voters in local, regional, national or international elections or referenda (Rule 7.1). But the Code recognises the distinction between Government policy and that of political parties. Marcoms by central or local Government, as distinct from those about party policy, are subject to the Code (Rule 7.2). Marcoms that are placed by charitable or commercial organisations that seek to lobby or raise awareness of a ‘political’ subject by, for example, urging readers to write to their MPs, too, are subject to the Code (The Speak Out Campaign Ltd, 24 October 2007, and Coherent and Cohesive Voice, 18 July 2007).
Because one could reasonably argue that political parties exist to influence voters, one could assume that all marcoms by the Labour or Conservative party should fall within remit. One should nevertheless bear in mind that the intention of rule 7.1 is to exempt types of advertisement, not types of advertiser. The ASA considers all complaints, not merely those that involve 7.1.
Section 2(p) of the introduction states that political ads as defined by rule 7.1 are exempt from the Code. Rule 7.1, however, mentions neither politics nor party politics. The ASA and the CAP Executive have interpreted rule 7.1 as excluding from the Code ads, whether party-political or not, that seem to have as their main purpose the influencing of voters in elections or referenda of a political but not necessarily party-political, governmental or legal nature. The elections or referenda do not have to be statutory ones and could include, for example, a ballot in which a public body seeks and agrees to abide by the opinions of the electorate. In 2013 an ad by a trade union made the claim “where hospital cleaning has been outsourced, we have seen … a rise in hospital infections”. This was challenged on the basis that the claim could not be adequately substantiated. The advertiser maintained that because it used advertising as part of its political campaigning work, to influence opinions and voting intentions, the ad did not fall within the remit of the CAP Code. The ASA considered that because the ads principal function was not to influence voters in a local, regional, national or international election, but rather appeared to be to highlight the advertiser’s opinions on the dangers of outsourcing hospital cleaning, it was subject to the CAP Code and the complaint was therefore investigated and subsequently upheld (Unison, 27 February 2013)
CAP continues to urge the political parties to put self-regulation into practice and write and follow their own Code. In June 2004, the Electoral Commission reported that, although the Committee on Standards in Public Life had urged the political parties to adopt a new code of practice, self-regulation by the political parties was unlikely to be achieved. Party political ads remain unregulated (www.electoralcommission.org.uk). For more information, see the Neill Committee’s report, presented to Parliament in July 1999, especially: www.archive.official-documents.co.uk/document/cm44/4413/4413-09.htm#gen53.