Advertising Standards Bureau Review of Operations 2016 2016 Review of operations_WEB | Page 62

The Advertising Claims Board
The Advertising Claims Board is a purpose-built
alternative to expensive litigation. It is a system
of alternative dispute resolution directed to
addressing and resolving challenges in advertising
that might otherwise lead to litigation.
The Claims Board considers
complaints against Section 1 of
the AANA Code of Ethics.
This includes complaints about:
• the legality of an advertisement
• misleading or deceptive advertisements
• advertisements which contain
misrepresentations likely to harm a business
• exploitation of community concerns in
relation to protecting the environment
• misleading country-of-origin claims.
The benefits of the Claims Board and its
system of alternative dispute resolution
are that:
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the process is concluded in a timely
manner (the Claims Board must make
a determination within 15 business days
of receipt of final submissions from the
complainant and advertiser)
the process is less costly than litigation, with
the only cost being fees for the members
sitting on the Claims Board and legal and
administration costs of the ASB
the parties have the option of proceeding to
usual dispute resolution procedures if desired.
The Claims Board comprises a variable panel of at
least three qualified legal practitioners, nominated
by the ASB from a Register of Lawyers it
maintains. Practitioners on this register have
certified to the ASB that they have experience
and expertise in the area of advertising and/or
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competition and consumer law and that they hold
a current practicing certificate. They must also
certify that they have no conflict of interest in the
particular matter.
The Claims Board Procedural Guidelines are
available on the ASB website. The ASB continues
to work to raise the profile of the Claims Board
and ensure that Advertisers are aware that this
unique form of alternative dispute resolution
is available.
Advertising Claims Board
cases – 2016
One case was considered by the ACB in 2016.
Claims Board find in favour of Uber
Advertising and marketing material from the
NSW Taxi Council was found to be misleading.
The complaint was lodged by Uber Australia.
The complaint related to two radio and two
print advertisements which were accessible via
links on the NSW Taxi Council’s website. Uber
Australia alleged that the advertisements gave the
impression that ridesharing services are not safe.
Notwithstanding the discontinuation of the
advertisements, the Claims Board determined
the complaint finding that the advertisements
were “published” on the advertiser’s website
and therefore available to the public, well after
the complaint was lodged. The public relations
exclusion was found not to apply because the
advertisements were targeted to consumers and
related to the complainant’s (a rival) activities.
The Claims Board also said that considering the
substantive complaint, despite the removal of the
advertisements, could assist the parties due to the
potential for future advertisements that use similar
messaging or themes.
The Claims Board determined that the
advertisements breached sections 1.2 and 1.3 of
the Code of Ethics, finding that they were likely
to be misleading and likely to cause damage to
a competitor.
The NSW Taxi Council responded that the
advertising had already been discontinued and
that remaining links to the advertisements had
been removed.
Uber Australia submitted that the claims
were misleading and deceptive because their
ridesharing services are safe.
The NSW Taxi Council responded to the
complaints stating that all claims made in the
advertisements could be reasonably substantiated.
The NSW Taxi Council also argued that the
complaint was outside the scope of the Claims
Board because the complaint was made after
advertising had already ceased to be published
or broadcast, and the advertisements were only
available via the Council’s website, as part of
excluded public relations communications.
Advertising Standards Bureau