New rules on harm in advertising and marketing?

The Equality Act 2010 prohibits discrimination based on various "protected characteristics" such as a person's age, sex and disability. The last wholesale review of the CAP (non-broadcast advertising) and BCAP (broadcasting advertising) Codes was completed before the Equality Act came into force. Accordingly, they do not fully weave in protected characteristics or harm in general.

That might be about to change. CAP and BCAP are consulting on the introduction of new rules relating to harm and protected characteristics (see here). This follows a public consultation by CAP and BCAP in 2019 on whether the Codes are consistent with the protections provided in the Equality Act (which resulted in protected characteristics being listed in the offence rules of the Codes, but no new rules).

CAP and BCAP consider that the introduction of explicit rules on harm and protected characteristics simply reflects the standards that the ASA already applies in its regulatory decision making. However, it is arguable that the proposed new rules extend more widely than is currently the case.

What are protected characteristics?

The Equality Act was introduced to harmonise discrimination law and strengthen the law to support progress on equality. Nine protected characteristics underpin it:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

The Equality Act also contains a duty on public authorities (the "public sector equality duty"). When carrying out their functions, public authorities need to have due regard to the need to:

• eliminate discrimination, harassment and other prohibited conduct
• advance equality of opportunity for persons sharing protected characteristics and those whose who do not, and
• encourage good relations between all people.

The practical effect of this duty means that it extends beyond public authorities to those carrying out public functions, which CAP and BCAP have interpreted as including them.  CAP and BCAP are obliged to consider how their policies and service delivery will affect people with protected characteristics.

Existing CAP and BCAP Rules

The Codes already contain specific rules relating to harm, particularly in section 4. The Principle underlying this section is that marketers/advertisers should minimise the risk of causing harm or widespread offence. Examples of Rules of relevance include the following:

• Rules 4.1 of the CAP Code and 4.2 of the BCAP Code contain general statements that marketing communications/advertisements must not contain anything that is likely to cause serious or widespread offence. Both state that particular care must be taken to avoid causing offence on various grounds (which map onto the protected characteristics outlined above).
• Rule 4.8 of the BCAP Code provides that advertisements must not condone or encourage harmful discriminatory behaviour or treatment and must not prejudice respect for human dignity.
• Rules 4.9 of the CAP Code and 4.14 of the BCAP Code state that marketing communications/advertisements, "…must not include gender stereotypes that are likely to cause harm, or serious or widespread offence."

New rule proposals

If implemented as currently proposed, the new CAP and BCAP rules will introduce a new general obligation on marketers and advertisers to prevent anything "likely to cause harm". They must have particular regard to the likelihood of causing harm to vulnerable people and those with protected characteristics (as outlined above). The rules have been proposed "…to address the potentially harmful effects…" of marketing and advertising and are set out in full below:

Section 4 (Harm and offence) of the CAP Code (own emphasis added):

Marketing communications must not include anything likely to cause harm. To comply with this rule, marketers must have particular regard to the likelihood of causing harm to vulnerable people, and to the following characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

Section 4 (Harm and offence) of the BCAP Code (own emphasis added):

Advertisements must not include anything likely to cause harm. To comply with this rule, broadcasters must have particular regard to the likelihood of causing harm to vulnerable people, and to the following characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

The likelihood of harm assessment is dependent on the content and context of the marketing communication/advertisement, but consideration must be taken of the following (which are similar to the duties on public authorities outlined above):

• the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act
• the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
• the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic
• the need to tackle prejudice.

If implemented, what will the new rules mean?

The proposed new rules impose a specific obligation on marketers/advertisers to have regard to the likelihood of causing harm to protected characteristics. This change would reflect equality law and – according to the ASA – reflect standards that the ASA already applies in its decision making. In that sense, their implementation should not result in a radical shift in practice.

However, it should be remembered that the proposed new rules extend beyond protected characteristics to cover any type of harm (including new forms of harm as they emerge). This would give the ASA scope to apply the new rules to a greater variety of situations than is presently the case. This all fits in with the government's general efforts to tackle harm (including online harm – see here). If the new rules are implemented, marketers and advertisers will be watching with interest to see if – and how – they are applied beyond the sphere of protected characteristics.

Where are we now?

Respondents to the consultation were asked to provide their rationale for whether they agree or disagree with the proposals. CAP and BCAP are currently considering these. The outcome of the consultation (including confirmation of any new changes to the Codes) will be published on the ASA website, likely in the first quarter of 2022.

The bigger picture

This consultation feeds into the wider work that CAP, BCAP and the ASA are conducting, including the ASA's racial and ethnic stereotyping work and CAP's gender stereotyping guidance. Further open calls for evidence are ongoing and include potential harms relating to body image concerns (see here). The regulators see themselves as proactive, ensuring that evolving societal values and prevailing standards are interpreted and applied.