Iceland's difficulty with 'Rang-tan' film highlights Clearcast's unusual status

The decision to ban Iceland's Christmas ad shines a light on a problem with our advertising regulation system: namely that Clearcast is not subject to judicial review.

Iceland's hope of adopting a Greenpeace film highlighting the threat palm oil cultivation for its Christmas campaign was thwarted this week by rules governing political advertising on television.

The retailer has said that it is being stopped from running the ad on the advice of Clearcast, the broadcast advertising clearance body, which expressed worries that Greenpeace's involvement contravened BCAP rules against advertising with political objectives.

The move is the latest in a long line of similar decisions concerning political advertising in recent years. The Make Poverty History and Animal Defenders International campaigns also had difficulty following current rules due to the broad definition of political advertising in the UK.
 
It is also interesting to consider whether the outcome of the decision would have been different if Iceland had not aligned itself with Greenpeace, but used the same creative material.

Greenpeace is clearly an organisation with a political objective. Iceland, on the other hand, is a commercial organisation that is legitimately trying to compete on the basis of its decision to not stock products containing palm oil.

Iceland is not seeking to change government policy in the way that Make Poverty History (arguing for debt relief for less developed nations) and Animal Defenders International (arguing for changes in the laws on vivisection) were.

The supermarket is simply highlighting the plight of the orangutan. It is seeking to change consumer behaviour through its advertising.
 
In the UK, all broadcasters rely on Clearcast to give or withhold consent to an ad for broadcast. This, you might think, would make it a regulator, susceptible to the usual legal checks of other regulators. However, this is not the case.

The last time an advertiser sought judicial review of a Clearcast decision, the high court decided that Clearcast is not a regulator and therefore not subject to the same processes. This, unfortunately, means that there is little prospect of redress following the organisation’s decisions.
 
Unless the courts reassess the position, there is no way to challenge Clearcast’s decisions going forward. Indeed, it would arguably make much greater sense for decisions regarding political advertising to be handed to the courts, rather than a collective of broadcasters.

Brinsley Dresden is a partner at Lewis Silkin

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