By Paul Herbert,
Christmas ad furore “a genuine case of serendipity, not a cynical PR ploy” commented Iceland’s managing director Richard Walker in response to media reporting of the company’s failure last month to secure clearance for the broadcast of its Christmas ad. The Ad featured Rang-tan, a young cartoon orangutan who sets up camp in a child’s bedroom in order to escape the carnage caused by the destruction of its jungle habitat for palm oil cultivation.
“Iceland’s Christmas TV ad banned for being too political” ran the reporting. But the fact of the matter is that the ad was not refused clearance on the basis of anything contained within it. Rather the issue was whether it was being submitted by or on behalf of a body whose objects are “wholly or mainly of a political nature”.
And here’s the rub: Iceland revealed in October that it had done a deal with Greenpeace to repurpose the animated short film created by Greenpeace earlier in the year and which had by that time been running on Greenpeace’s website for several months. Mindful of this provenance, Clearcast, the body appointed by the UK’s commercial broadcasters to clear advertisements for transmission, requested evidence that Greenpeace was not a body with objects of a political nature.
No evidence was provided and therefore clearance could not be given.
The prohibition on political advertising appearing on the UK’s commercial broadcasters has existed for more than half a century.
An advertisement contravenes this prohibition if it is inserted on behalf of a body whose objects are wholly or mainly of a political nature. This can include “influencing public opinion on a matter of public controversy”. And there are plenty of precedents for the Iceland/Greenpeace outcome: The Make Poverty History (“MPH”) Campaign in 2005 included the line “Somebody dies avoidably through poverty every 3 seconds”. A caption implored “Make Poverty History” and encouraged viewers to lobby government directly. MPH’s objectives were adjudged to be directed towards political ends for these purposes.
The ban has also been challenged in the Courts, unsuccessfully, by disgruntled advertisers, on several occasions, most recently in relation to Animal Defenders International (ADi), an organisation which campaigns against the commercial exploitation of animals.
In 2005 ADi launched a campaign directed against the use of primates in television advertising which included a 30 second campaigning commercial. The commercial was declined on the grounds that ADi’s objectives were wholly or mainly of a political nature, a decision ultimately upheld by the European Court of Human Rights in Strasbourg, albeit by a wafer thin majority of 9 to 8.
I somehow doubt that Iceland will fall into the category of disgruntled advertiser. Regardless of its no-show on TV, it has apparently garnered 70m+ views on social media and online. Because of course it is perfectly lawful for the Ad to be published on those platforms.
The ban only applies to old school linear TV.
Paul Herbert is a partner at Goodman Derrick LLP, the London law firm.