Most of us claim to believe, in a vague sort of way, in freedom of speech. It’s what sets democracies apart from dictatorships. Yet the ability to speak your mind seems to be shrinking. Some of this is down to the government, with its ever-expanding concept of hate speech. But nowadays an awful lot seems to come from private bodies. One example is the “no-platforming” policies in too many universities, where jellyfish vice-chancellors and virtue-signalling Oxbridge college heads fail to offer a grown-up response to over-excitable students.
But here’s another: the Advertising Standards Authority’s (ASA) ban on PrettyLittleThing’s YouTube advert.
Freedom of speech is not simply about uncensored journalism, demonstrating in Trafalgar Square, writing provocative books, or making controversial movies or television programmes. It also includes commercial free speech – advertising – as great classical liberals such as Ronald Coase, Ralph Harris and Arthur Seldon have made clear.
And nowadays a lot of advertising takes the form of video clips on YouTube and social media.
Advertising, like most public conversation, mixes information and persuasion. I tell you about the availability of my new product, or about why my product is better than yours. Often the persuasion is non-verbal, with the ad inducing a mood or an identification with other people who consume the product. The information part is directly valuable to the consumer, while the persuasion angle is part of a competitive environment – in the same way as artistic, academic or political discourse is competitive – which generates innovation.
We don’t want dull conformity from our academics and politicians, recognising that controversy and choice are important. Nor do we want movies and theatrical productions which (as in Nazi Germany or the Soviet Union) conform to a party line. Similarly, the clash between different consumer brands widens our options, gives us new experiences, drives down prices – and is an essential part of a free society.
There may have to be some restrictions on speech that potentially damages others. Oliver Wendell Holmes gave us the famous example of someone irresponsibly shouting “fire” in a crowded theatre. In advertising, we may need protection from fraud and direct lies. But in Britain – where commercial free speech is sadly much less protected than in the USA – advertising is subject to increasing constraints driven by social engineering rather than consumer protection.
PrettyLittleThing is a highly successful clothing business aimed at young people, making its pitch via YouTube influencers and social media rather than TV ads and heavy investment in bricks and mortar. Its advertising suits its demographic. The ad to which the ASA took exception shows young women posing provocatively in scanty underwear, something which about half of the under-25 female population seems to engage in, judging by social media.
The ad may not be to everybody’s taste, but is it honestly very different from mainstream TV aimed at a similar age group, such as Love Island or the frankly bizarre Naked Attraction, where participants choose potential dates based on seeing their genitals? No. Yet these programmes are approved by Ofcom.
Ofcom, however, is a government regulator and ultimately responsive to the public. The Advertising Standards Authority is not. Despite its official-sounding title, it is not an “authority” in the statutory sense. It was set up in the 1960s as an industry-financed body in response to concerns about “hidden persuaders”, as American sociologist Vance Packard described them, who allegedly manipulated people to buy products which they didn’t need or which failed to live up to the claims made on the can. The original brief was to try to ensure that adverts were “legal, decent, honest and truthful”. Not necessarily an easy thing to do, but this mission was widely accepted.
If a complaint is upheld, the ASA can require an ad campaign to be amended or withdrawn. It can require future campaigns to be pre-vetted. But these powers are by consent – there is no legal basis for them. If an advertiser refused to play ball, there’s not much that the ASA could do. But of course, companies worried about reputational damage usually acquiesce and withdraw the relevant campaign.
In the past, the ASA’s interventions have not been too controversial. But, like some other private bodies (the RSPCA comes to mind) it has recently been “captured” by particular interests – in this case, a strong feminist lobby. In 2017, it published Depictions, Perceptions and Harm: A report on gender stereotypes in advertising, which called for “a tougher line” on ads that could be held to feature “stereotypical gender roles and characteristics”. This then became the basis of its policy.
The report argued that gender stereotypes have the potential to cause “mental, physical or social harm”. It claimed, for example, that high male suicide rates arise because men are upset at being unable to live up to cultural expectations of masculinity. There might be a loss to the economy of £150bn because stereotypes help maintain the gender pay gap and therefore lead to slower economic growth. Yes, seriously.
It was asserted that stereotypes can be offensive to large numbers of people, and the authors thought this particularly important. Those arguing for freedom of speech were summarily dismissed: “free speech and liberty to offend does not correspond with a right to cause harm”. As for the view that much advertising is meant to be ironic and humorous, the report sternly argued that “research” suggests that exposure to sexist humour “is linked to increased prejudice and sexist views”.
This is the context in which the ASA judged that the PrettyLittleThing advert was “offensive” – based on just one anonymous complaint. The firm’s products – seductive lingerie, remember – were displayed in an “overly-sexualised way” and depicted women as sexual objects – a finding on a par with the discovery that the pope is Catholic.
Banning advertisements on these grounds alone is not good enough. It comes after the even less justifiable bans last year on allegedly sexist ads for Philadelphia cheese and Volkswagen cars.
Bans have the potential to be costly to businesses, to damage the UK’s world-leading advertising industry (many of whose talented creatives have gone on to success in films and TV) and to reduce competition.
But they are more insidious than that, in that they tell us, without any genuine authority or public debate, what we can and cannot say in the market place. They also attempt to manipulate wider behaviour in society – ironic given that that fear of such manipulation was the driving force for creating the ASA in the first place.
This particular ban will do little to damage PrettyLittleThing. The publicity has probably benefited it on balance, which shows another danger of rulings of this kind, that they may encourage advertisers to be unnecessarily provocative in order to reap the often forgotten benefits of notoriety.
The ASA is a body funded by advertisers. They should revolt against the growing restrictions which it’s placing on their businesses and, indirectly, on us.
