[2013 trends] Media and advertising regulation in 2013

The ASA is embroiled in litigation the likes of which it has not seen before. While, from the little I know of the matter, I believe that the merits are in the ASA's favour, the ASA finds itself in a precarious position. It needs to strongly defend any litigation threats, but this carries both financial burden and risk, and it is no secret that the ASA is in financial trouble.

One can only hope that its professional indemnity insurance is fully paid up. A loss on the merits could also open a flood gate of litigation.

My prediction is that 2013 will see a rise in the litigation against the ASA, with medium-sized marketers getting overexcited about the example already set, and hungry lawyers pushing for class-action suits. The highest risk is in the complementary medicines industry, where marketers feel misunderstood and targeted.

I will not be advising my clients to take this route. I consider litigation against an industry self-regulatory body counter-productive. In addition, the prospects of success are always going to be negligible unless the ASA commits an act of gross negligence.

However, the fact that the code has been rejected when other weakly drafted codes have been merrily inserted into the Code of Advertising Practice makes me think that the ASA is being influenced by certain strongly opinionated complainants. I challenge the ASA to prove its independence in this regard.

King regarded the role of president as non-executive and strived to maintain his independence from the hurly-burly of daily ASA problems. Legal experts speculate that this will not be the case with O'Regan, and that we might see the board and CEO of the ASA called to account for the financial crisis of the ASA, and the dissatisfaction around the management and communication of the ASA.

We can also expect a subtle shift in the ASA Final Appeal rulings. While King took a very legalistic approach, with rulings often being made on technicalities, it is expected that O'Regan, with her Constitutional Court background, may be more given to rulings in the spirit, rather than the letter, of the code.

For those of us whose livelihood depends on accurately assessing the probabilities of success before the ASA, this is an exciting but somewhat uncertain year.

While I have no doubt that the definition of advertising in the code is wide enough to encompass practically any type of advertising that may arise, the enforcement of these rulings will always present a challenge.

Advertising law is a narrow and specific field of expertise, and it is my hope that this year will see a rise in marketers requesting assistance at the beginning of the campaign or when they first get an ASA complaint, rather than when they are facing sanctions for breach of a ruling.