THE end is nigh for self-regulation of the British press, all hail "independent regulation". That was the message from David Cameron, the prime minister, in the House of Commons yesterday.

Bagehot, naturally, has total faith in politicians to preserve press freedoms even as the torrent of disgusting revelations continues about tabloid misconduct. Alas others are less confident. Researching this week's print column, I spoke to a well-placed Conservative who suggested that press freedoms faced a "twin threat", from a crackdown led by government, and from a separate push from Parliament. In fact, he told me: "MPs are cock-a-hoop because they can now shaft the papers that shafted them on expenses." What about the great British newspaper-reading public, I asked? Are they as interested in this whole scandal as hacks like me? His reply: leaving aside genuine public disgust over the hacking of the mobile phone of a murdered schoolgirl, Milly Dowler, "I suspect the man on the street doesn't much care".

So what sort of press regulation lies in store? Taking questions from MPs yesterday, Mr Cameron cited the Advertising Standards Authority (ASA) as a possible model. That chimes with advice I was offered a day earlier by a senior MP who sits on the House of Commons select committee for culture, media and sport. "It is implausible to think a government-appointed body is going to regulate the press," that MP told me. Instead, he pointed to the ASA as a possible halfway house between self-regulation and statutory policing of the print media. The advertising watchdog is independent of government, the MP explained, but because it draws its powers from a legal agreement with a statutory regulator (OFCOM, in the case of commercial broadcast advertising), it has sharper teeth than the self-regulatory Press Complaints Commission.

What does that mean? Well, after digging around a bit, I think it is fair to say: watch out for the detail. There are, in effect, two different ASA models, and one of them looks a lot more like statutory regulation than the other.

The ASA has two broad areas of work.

One bit polices print advertising, direct mailshots and promotional materials for compliance with the Committee of Advertising Practice code (the CAP code).

The other bit polices broadcasting advertising under the Committee of Advertising Practice broadcast code (the BCAP code).

Both codes go well beyond anything covered by current press codes of conduct. They include, for example, a requirement to be "socially responsible". Lordy. Is Bagehot socially responsible each week? I do hope not.

Here is the ASA's own summary of its remit:

The Advertising Codes contain wide-ranging rules designed to ensure that advertising does not mislead, harm or offend. Ads must also be socially responsible and prepared in line with the principles of fair competition. These broad principles apply regardless of the product being advertised. In addition, the Advertising Codes contain specific rules for certain products and marketing techniques. These include rules for alcoholic drinks, health and beauty claims, children, medicines, financial products, environmental claims, gambling, direct marketing and prize promotions. These rules add an extra layer of consumer protection on top of consumer protection law and aim to ensure that UK advertising is responsible. The ASA administers the rules in the spirit as well as the letter, making it almost impossible for advertisers to find loopholes or ‘get off on a technicality'. This common sense approach takes into account the nature of the product being advertised, the media used, and the audience being targeted.

The broadcast and non-broadcast codes overlap a great deal, I am told, but there are some big differences born out of things like the political impartiality rules imposed on British broadcasters. This, for instance, is why political parties or campaign groups like Greenpeace, say, can buy newspaper ads but may not pay to run advertising on the radio or television.

Crudely, when the ASA is policing non-broadcast ads, it is a self-regulator, backed by the industry and relying on industry peer pressure for most of its clout. In a small minority of cases where its ruling are ignored or flouted, it can call on what the ASA calls its "legal backstop", meaning it can refer miscreants to the Office of Fair Trading for punishment (ie, fines).

But things look very different when the ASA is policing broadcast ads. There, the ASA is a "co-regulator". In plain English, it is the eyes and ears of a powerful statutory regulator, OFCOM. In law, the ASA is in a "co-regulatory partnership" with OFCOM, an official body with ferocious powers, backed by its right, ultimately, to revoke a broadcaster's licence (ie, shut them down). Most of the time, the ASA does its work a bit like a contractor, contacting advertising agencies and if needs be broadcasters to warn them about dodgy ads. So the ASA operates at arms length from government, and is legally independent. But once ads are on the radio or on television, it swims in a wholly different sea, because all those involved know that they operate only with the permission of the authorities.

Is this such a bad thing? On the plus side, the fact that the ASA has a legal backstop (in the first case) and acts for a statutory regulator (in the second) certainly seems to give them access to a wide range of non-legal sanctions designed to get the attention of misbehaving advertisers. Here is the ASA's list of the sanctions that it wields. It is worth quoting in full, I think.

Non-broadcast The majority of sanctions for non-broadcast advertising are co-ordinated through CAP, whose members are trade associations representing advertisers, agencies and media. There are several CAP sanctions, which can be employed in different circumstances: Ad Alerts - CAP can issue alerts to its members, including the media, advising them to withhold services such as access to advertising space. Withdrawal of trading privileges - CAP members can revoke, withdraw or temporarily withhold recognition and trading privileges. For example, the Royal Mail can withdraw its bulk mail discount, which can make running direct marketing campaigns prohibitively expensive.



Pre-vetting - Persistent or serious offenders can be required to have their marketing material vetted before publication. For example, CAP's poster industry members can invoke mandatory pre-vetting for advertisers who have broken the CAP Code on grounds of taste and decency or social responsibility – the pre-vetting can last for two years. Sanctions in the digital space - In addition to the above-mentioned options CAP has further sanctions that can be invoked to help ensure marketers' claims on their own websites, or in other non-paid-for space under their control, comply with the Codes. CAP can ask internet search websites to remove a marketer's paid-for search advertisements when those advertisements link to a page on the marketer's website that hosts non-compliant marketing communications. Marketers may face adverse publicity if they cannot or will not amend non-compliant marketing communications on their own websites or in other non-paid-for space online under their control. Their name and non-compliance may be featured on a dedicated section of the ASA website and, if necessary, in an ASA advertisement appearing on an appropriate page of an internet search website. For misleading or unfair advertising, if an advertiser refuses to comply with the ASA, then the ASA Chief Executive is able to refer the advertiser to the Office of Fair Trading for legal proceedings under the Consumer Protection from Unfair Trading Regulations 2008 or the Business Protection from Misleading Marketing Regulations 2008. Such referrals are rarely necessary, as most advertisers prefer to resolve the matter directly with us. The ASA's designation by Ofcom of regulating Video-on-demand advertising means that we have access to a new sanction. Failure to comply with the rules in the VOD Appendix may result in the matter being referred to Ofcom with a view to Ofcom considering whether the media service provider has contravened the relevant requirements of the Act. Broadcast For broadcast advertisements, the responsibility to withdraw, change or reschedule a commercial lies with the broadcasters.



Broadcasters are obliged by a condition of their broadcast licences to enforce ASA rulings. If they persistently run ads that breach the Codes, broadcasters risk being referred by the ASA to Ofcom, which can impose fines and even withdraw their licence to broadcast.



Although the obligation to comply with the Codes rests with the broadcaster, advertisers also suffer consequences if their broadcast ads breach the Codes. They might, for example, face bad publicity generated by an upheld complaint to the ASA. Advertisers might also have wasted hundreds of thousands of pounds making the banned advertisement in the first place and lost the revenue that it might have generated. And because broadcasters cannot show ads that breach the Codes, advertisers might lose prime advertising slots in which a banned ad has been booked to appear. Finally, any advertisements that break the Codes are disqualified from industry awards, denying advertisers and the agencies that created the ads the opportunity to showcase their work.

The government is doubtless right that the public wants to see press regulation with more teeth. The ASA also, by all accounts, does a good job of policing advertising, inasmuch as misleading ads very rarely see the light of day and when they do, they are swiftly caught. But is this a happy model for the future of press regulation? This debate is going to need watching like a hawk.