1. There is a large body of law governing advertising. Neither this Section nor Appendix II purport to comprehensively or accurately set out that body of law. Nevertheless, the following will be of general guidance in describing the wider background against which the ASAI operates.
2. The Consumer Information Act, 1978, makes it an offence to publish any advertisement that is likely to mislead and thereby cause loss, damage or injury to members of the public to a material degree. At the time of publication, under the European Communities (Misleading Advertising) Regulations, 1988, it is open to any person to apply to the High Court for an order prohibiting the publication of misleading advertising. There are also statutory requirements affecting the
advertising of certain products and services, including alcohol, tobacco, medicinal products and credit services, and in relation to the advertising of employment opportunities. The provisions of the Gaming and Lotteries Act, 1956, are relevant to sales promotions involving prizes. In addition, the Trade Marks Act, 1996, and the law of passing off are relevant with respect to comparative advertising. This legislation provides a valuable statutory back-up to the ASAI. A list of statutes, statutory instruments and other codes affecting advertisements and promotions is contained in Appendix II.
3. At the time of publication, it is anticipated that the Unfair Commercial Practices Directive will be transposed into Irish law in 2007 by a single Act. This Act will consolidate and replace some of the current consumer legislation, including the Consumer Information Act, 1978, and, in the context of business to consumer advertising (but not business to business advertising), the European Communities (Misleading Advertising) Regulations, 1988. In particular, this Act will introduce a general prohibition on unfair commercial practices, which will add a new element to consumer protection legislation in Ireland.
4. Direct marketing advertising is also subject to regulation under Irish law. The Data Protection Acts, 1988 – 2003, apply in this area if the direct marketing is directed to an identifiable person. If the direct marketing is made by electronic means such as fax or e-mail, the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations, 2003, must be complied with.
5. The ASAI is not a law enforcement body and does not provide legal advice. The self-regulatory system is subordinate to and complements legislative controls on advertising and sales promotions and provides an alternative, low-cost and easily accessible means of resolving disputes. It encourages, and provides a means for, the acceptance of standards of practice which in a number of areas go beyond those which are required by law, while not constraining reasonable expressions of freedom of speech. It provides a flexible and sensitive means of dealing with matters of taste and decency that might be difficult to judge in law but which can fundamentally affect consumer confidence in, and receptiveness to, advertising, as well as the reputation of the advertising industry. It does not prejudice consumers’ or advertisers’ rights under law.