We recently received a letter from the ASA asking for feedback about their competitor complaints procedure. We are planning to make our submission by the deadline of Friday, 25th October 2019

Their letter identifies a number of features of competitor complaints procedures operated by other advertising regulators overseas which are not currently part of the ASA's process. The implication is that these are under consideration for possible incorporation into any new procedures, particularly with a view to improving the speed at which competitor complaints are resolved:

  •  Limited opportunities to make exhaustive submissions, which cannot be supplemented later;
  •  Full disclosure of submissions to the other party (except for genuinely confidential information);
  •  Strict timetables which must be observed;
  •  Possible use of oral representations or hearings;
  •  Exclusion of  'complex' complaints which cannot be determined in the given timescale;
  •  Payment of a fee, usually by the complainant;
  •  An indemnity from the advertiser and complainant to the regulator against subsequent court proceedings, such as judicial review (cheeky!);
  •  The use of a smaller panel, equivalent to the ASA's Council, sometimes comprised of external lawyers;
  •  Exclusion of any right of appeal; and
  •  Treating adjudications as confidential to the parties, and only publishing generalised and anonymised learning that will be made public.

It seems that the list above is the result of the comparative study that the ASA has made of other systems but based on other discussions that we've had in the past, it seems highly unlikely that the ASA would adopt all of those features, although some of them must be under serious consideration. The ASA's letter then asks 8 questions, and invites respondents "to reflect and comment on the relevance of some of the features of other counties' processes we have outlined above." 

The 8 questions are as follows:

"1. What, in your experience, are the limitations of the ASA’s current competitor complaints process?

2. What are its benefits?

3. What are your experiences (if any) of engaging in Inter-party resolution? How might that part of the process be optimised?

4. We find that the complainant has an obvious interest in a swift outcome. The advertiser on the other hand generally values thoroughness more than speed and will sometimes deploy tactics to slow the process down. How should we balance those competing demands? In particular, how should the opportunities for parties to input be managed to better achieve that balance?

5. We recognise that particularly long running investigations are not in anyone’s interests, which is why we enforce a policy of limiting the number of points of complaint in each investigation to three, save for in exceptional circumstances. Despite this, some competitor complaints, particularly those that involve complex issues, are taking a long time to complete, for a variety of reasons. What further measures should we consider in the name of speeding up our investigations?

6. Do you think we, like other advertising regulatory bodies, should start charging a fee for competitor complaints? If so, why? If not, why not?

7. Sometimes, complex competitor complaints become bogged down because we cannot readily find an expert in a specialised area and when we do, sometimes one or both parties have objections because of a real or perceived conflict of interest with that expert. Securing an appropriate level of expertise is also sometimes very costly with the ASA bearing all of the burden of that cost. What might we do to tackle these issues?

8. Are there any other insights or thoughts you would like to share at this initial stage of our review?"

We shall be submitting our own response on Friday, but if you have any thoughts that you would like to share with us or which you would like us to incorporate into our submission, please let us know as soon as possible. You can email me at brinsley.dresden@lewissilkin.com