ICC statement in favor of freedom of commercial communication

ICC has recently issued a statement asking governments to reject “general advertising bans” and “overly prescriptive restrictions on truthful commercial communications”. Through this statement, ICC promotes professionals self-regulation and recognition of their responsibility in providing decent, honest and loyal commercial communications.

Freedom of commercial communication balanced with the principles set in the ICC Code

This new ICC statement released on November 20, 2015 is merely a reminder of the main principles of the ICC Code of Advertising and Marketing Communications Practice (the “ICC Code”), notably: (i) Safeguarding the freedom of commercial speech and providing effective practical and flexible solutions  to minimize the need for detailed governmental and/or inter-governmental legislation or regulations while (ii) promoting good practices in commercial communication and enhancing overall public confidence in marketing communication.

In its statement, ICC considers that any publicity activity which is part of a marketing process for any category of goods or services – that are legally manufactured and/or marketed – should be protected by a principle of freedom of commercial speech. According to this statement, excessive constraints and bans applicable to commercial communication weaken fair competition and consumers’ freedom of choice – therefore economic growth.

According to ICC, this freedom should be balanced with the principles set in the ICC Code – notably decency, honesty, social responsibility, truthfulness.

It implies that professionals should promote their products freely but responsibly by following the principles set in the ICC Code. This Code – which inspired some countries’ self-regulatory bodies in establishing their own codes – is regularly updated and provides guidelines that promote business self-regulation and set the standards of ethics in marketing by providing practical guidance for professionals.

While ICC reminds that commercial communications should not violate standards of decency, abuse the trust of consumers, or exploit their lack of knowledge, it considers that rules on self-regulation are more efficient than general bans or overly prescriptive restrictions,  easier to update and  quicker to apply.

Conditions for self-regulation effectiveness

ICC considers that, for self-regulation to be effective, consumers and marketers must be aware of it and there must be adequate enforcement mechanisms.

It implies that it is important for professionals to check whether the country where they want to launch a commercial communication has a self-regulatory code and body acting in accordance with their rules and decisions.

Where such self-regulatory codes and arrangements are in place, the ICC Code notably states that “no marketer, communications practitioner or advertising agency, publisher, media owner or contractor should be party to the publication or distribution of an advertisement or other marketing communication which has been found unacceptable by the relevant self-regulatory body”.

Furthermore, marketers are encouraged in the ICC Code “to include in their contracts and other agreements pertaining to advertising and other marketing communication, a statement committing the signatories to adhere to the applicable self-regulatory rules and to respect decisions and rulings made by the appropriate self-regulatory body”.

Where no effective self-regulatory codes and arrangements are in place in a particular country, marketers are however encouraged by the ICC Code to “include in their contracts and other agreements pertaining to advertising and marketing communication a statement committing the signatories to respect the current Consolidated ICC Code”.

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