Section 14

Submitters on Auckland City Council’s billboard ban should be congratulated for their overwhelming rejection of the city’s plans to regulate commercial speech. It remains to be seen whether the council will take any notice or whether the consultation process is as much of a farce as any of us suspect.

Meanwhile, in those parts of the third world that Auckland is trying to emulate, similar bans have already gone into effect. The city of São Paulo banned outdoor advertising from January 1st this year. Tony de Marco has posted a set of images on Flickr documenting the change and it feels slightly creepy - like some 1950s film where you wake up one morning and everyone’s disappeared.

Hat tip: Boing Boing.

UPDATE 20/4/07: Compare this to Shanghai, where they know how to advertise. Jakob Montrasio posted this picture on Flickr showing a 420 metre high Windows Vista advertisement. Sadly, not something that would be possible in the People’s Republic of Auckland.

Hat tip: Passport.

The Consumers’ Institute has decided to celebrate World Consumer Rights Day by calling for consumers’ rights to be curtailed, specifically the right to be informed about pharmaceuticals via television advertising.

Consumers International, the organisation behind the campaign internationally, has a page dedicated to explaining why direct-to-consumer (DTC) drug advertising is unethical. That page has a single heading: “Fuelled by profit”. Shocking stuff.

In the culmination of several seconds of research, Consumer research writer Belinda Allan determines, “DTCA’s primary objective, no matter what gloss is placed on the information, is to sell more product.” Another shocking revelation.

The comment above about calling for consumers’ rights to be curtailed is tongue in cheek - there is no such right. You can’t force a TV station show you these advertisements. There is a genuine right that is being curtailed here though and that is the right of drug manufacturers to speak about their products.

These products have been approved by MedSafe and are governed by the Medicines Act, advertising claims are governed by the Fair Trading Act, these drugs are legal to buy (on prescription), it’s legal to ask your doctor for them, it’s legal for your doctor to tell you about them. It is preposterous to say that it should be illegal for the manufacturer to tell people they exist and what they’re used for.

Setting aside the outrageous attempt to gag pharamceuticals companies, what is the practical benefit of a ban? The only thing these advertisements can do is encourage people to ask their doctor for a particular drug, a perfectly legal activity. And if the doctor doesn’t think that a drug is suitable for any given patient that’s the end of it - no prescription, no sale.

Perhaps these “consumers’ rights” groups should take off their anti-corporate blinkers for a moment, stop trying to squash people’s right to express themselves, and spend more time worrying about what consumers actually want. A recent report on the topic from the Foundation for Advertising Research concludes:

From a consumer viewpoint DTCA has many advantages and few disadvantages. Consumers do not share the concerns expressed by critics of DTCA of consumer safety, increased costs, patient-doctor relationships and medicalisation. Instead they believe DTCA enables them to obtain useful information, a sense of empowerment, a prompt to obtain medical advice and a basis for meaningful and more informed discussions with their doctor about their healthcare.

Spiked describes itself as “an independent online phenomenon dedicated to raising the horizons of humanity by waging a culture war of words against misanthropy, priggishness, prejudice, luddism, illiberalism and irrationalism in all their ancient and modern forms.”

Spiked has a couple of interesting articles at the moment. Tyranny of the individual examines today’s thin-skinned culture, in which any individial can complain and cause a product or advertisement to be pulled.

Today’s culture of inoffensiveness, the idea that ‘You can’t say that!’ if it hurts someone’s feelings, has given rise to censure based on tiny numbers of people claiming to have felt offended. Once society accepts that it is legitimate to protect individuals or groups from the subjective category of ‘offensive’ speech or expression, then that gives carte blanche to individuals everywhere to demand the removal of things they don’t like. At least the old censors claimed to be democratic, to represent a ‘silent majority’ or ‘public decency’; of course this was nonsense, because in fact they tended merely to dress up their own values as the nation’s values. Today, by contrast, groups like Ofcom and the Advertising Standards Authority openly respond to tiny handfuls of complaints, using the bogeyword of ‘offensive!’ to remove certain words and images from the public realm.

In Denial, Frank Furedi looks at the emergence of ‘denial’ as the new blasphemy, the calls for those heretics who don’t correctly follow ecological doctrine to be punished, and the effect of all this on free speech.

Many influential figures have a cavalier attitude to free speech, believing that ‘dangerous’ ideas should be repressed. Disbelief in today’s received wisdom is described as ‘Denial’, which is branded by some as a crime that must be punished. It began with Holocaust denial, before moving on to the denial of other genocides. Then came the condemnation of ‘AIDS denial’, followed by accusations of ‘climate change denial’. This targeting of denial has little to do with the specifics of the highly-charged emotional issues involved in discussions of the Holocaust or AIDS or pollution. Rather, it is driven by a wider mood of intolerance towards free thinking.

As I said last week, copyrights and trademarks are legitimate restrictions on speech because they protect the intellectual property of an idea’s originators without preventing the expression of any point of view.

Organisations need to vigorously protect their trademarks or else risk them falling into general use and becoming unprotectable. “Petrol” was once a trade name, “Coke” has come to mean any sweet, brown, fizzy drink - although their lawyers will still come after you, and we are seeing the verb “to google” coming into common use.

The U.S. National Pork Board did not see the funny side when breastfeeding advocate The Lactivist started selling a t-shirt with the slogan “Breastmilk: The Other White Milk”. The Cafe Press site that sells the t-shirts also features other items that play on trademarks - how about “Nip/Suck” or “It’s Nipple Lickin’ Good”.

Whilst passing off your product as another brand is forbidden, parody is protected as a fair use. It’s extremely unlikely that even the slowest of people would think that the Pork Board was endorsing the product, or that the product would damage the Pork Board’s brand. Some companies actually go to great lengths to make a gratuitous link between their products and the female form.

When the lawyer’s letter came, the Lactivist blog didn’t give in but rallied its readership to harass the Pork Board into taking back its threat to sue. (Cafe Press had already removed the offending t-shirt however.)

Once again, slowly: Just because someone says something you don’t like, or you’ve a had a humour bypass, don’t have a hissy fit and start throwing lawyers around. You will look like an idiot and generate publicity for the very thing you don’t want anyone to see.

Hat tip: EFF, via Boing Boing.

Auckland’s crackdown on commerical speech is being extended into the suburbs. I reported in December on the billboard ban proposed by Auckland City Council for the central business district. Today the NZ Herald reported that the decolouring campaign is to be extended across the whole city.

Signs affected include billboards, murals, banners, flags, balloons, posters, sandwich boards, wind socks, blimps or projections of light which advertise a product, business or service. Messages or noticeboards 50cm or less inside a door or window are also included.

The public have until March 2 to make submissions on the bylaw.

The details of the proposed bylaw changes are on the city council’s web site. The page contains a link to the bylaw submission form.

Bluebirds Foods has withdrawn an advertisment for its potato chips after a compaint to the Advertising Standards Authority by the Obesity Action Coalition.

Not happy with this victory, the OAC is saying that the current system doesn’t work and is demanding that advertising be regulated.

Among its failures is the fact that action is only taken to review an ad once a complaint has been made. This means that vulnerable consumers are always exposed to the irresponsible and misleading ads for some time before they are withdrawn. The ASA say that complaints are dealt with in about 24 days from the time they are received. So, at best, it is weeks before an offending ad is withdrawn.

Like all those who would regulate our speech, they know best and they’re willing to prevent us, the poor “vulnerable consumers” from hearing “irresponsible” information that might lead us to make a choice that they disapprove of.

Close on Auckland’s heels, Wellington City Council is also considering cracking down on capitalism’s colour. (Dominion Post, p.A8, Billboard backlash hits capital). Urban planning director Ernst Zollner says, “increasing complaints about billboards meant Wellington bylaws would be revisited early next year.” Whether that’s because there are more billboards or just more whining isn’t clear.

A European city with no billboards.

Auckland City Council is proposing to ban billboards from the inner city. (Hat tip: Kiwiblog)

Auckland City Council plans to ban billboards in the Queen St valley - from Hobson St across to Anzac Ave - including Britomart, Karangahape Rd and the Viaduct Harbour. It is argued the ban will help to make Auckland an “international city”.

If you’ve seen the wonderful film Good Bye Lenin!, you will remember the statues of Lenin being removed from East Berlin and replaced with enormous Coca-Cola banners. It seems Auckland would much rather travel in the opposite direction.

Is this a free speech question? The argument will be made that the proposed regulations are intended to preserve “heritage” buildings and that the restriction of speech is incidental. More likely is that this is a deliberate attempt to restrict a certain class of speech - commercial speech - because some councillors find capitalism distasteful. If that is the case this is most certainly a form of politically motivated censorship.

Ms Fryer said the ban would bring Auckland into line with other “main international cities with European influences”.

I can only assume “European influences” is secret code for socialism.

UPDATE 15/12/06: Auckland City Council last night voted in favour of the ban, which now goes to public consultation.

Julian Pistorius, deputy leader of Libertarianz, has written letters to various Auckland councillors and posted their replies.

The proposed ban on direct-to-consumer (DTC) pharmaceutical advertising has not materialised. (Hat tip: Kiwiblog)

There had been rumbling that the new Therapeutic Products and Medicines Bill would include a ban on advertising prescription drugs on television. That ban has not eventuated - not because the government has suddenly developed a respect for free speech, but because they couldn’t guarantee the numbers to pass the law.

The bill, expected to have its first reading next week, had been expected to curtail the advertising of prescription medicines.

However, widespread political opposition has forced Labour to scrap any attempt at a ban.

State Services Minister Annette King said the Government’s preference was to ban prescription medicine advertisements but “the necessary support within Parliament” was not there.

Congratulations to all those members who failed to provide that necessary support.

The threat of censorship still exists with Health Minister Annette King showing her anti-speech colours by promising “better controls” to ensure the public is given “balanced and truthful [i.e. only state approved] information.”

Some background information can be found in the Foundation for Advertising Research’s report on DTC advertising of pharmaceuticals.

In New Zealand rugby is the national religion - it certainly has a far wider following than Christianity - but we still have laws that hark back to the days when Christianity operated in cosy collusion with the government.

TV3 is looking for an exemption to s81 of the Broadcasting Act, which forbids the broadcast of advertisements from 6am to noon on Sunday mornings. Sunday mornings are generally the low-rent end of television, so the gagging of advertisers to protect Christian sensibilities goes unnoticed, but that won’t be the case during next year’s rugby World Cup. Five potential All Black games, including a semifinal and final would fall during restricted hours.

Canwest, who presumably paid a fair bundle for the broadcasting rights to the tournament, have petitioned Broadcasting Minister Steve Maharey for an exemption to these archaic regulations. Maharey has delegated the decision to Sports Minister Trevor Mallard.

The real question should not be about just the World Cup but about what right the government has to dictate when broadcasters are allowed to broadcast advertising. Clearly this should be at their own discretion. Advertisers have the right to express themselves and broadcasters have the right to provide them with the means.

The Broadcasting Act bans television advertising on Sunday and Anzac Day mornings and all day on Christmas Day, Good Friday, and Easter Sunday. Gagging advertisers to protect religious sensibilities has no place in a free country.