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: • • • 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 60 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