Cathay’s Pink Dot advertisement take-down request: an abuse of authority?

pinkdotad

The Advertising Standards Authority of Singapore (ASAS) has requested that Cathay Organisation Holdings to remove the line, ‘Supporting the freedom to love’, from a Pink Dot advertisement displayed at Cathay Cineleisure.

ASAS’s decision was problematic, and an explanation should be forthcoming. Otherwise, it will be difficult not to conclude that it acted outside its scope of authority, and had possibly allowed partisan interests to interfere with its regulatory role.

Background: the role and structure of ASAS.

According to its website, ASAS’s aim is to promote “ethical advertising in Singapore” as “the self-regulatory body of the advertising industry”, and it regulates the industry “through the Singapore Code of Advertising Practice (SCAP)”.

ASAS is an advisory council to the Consumers Association of Singapore (CASE), which is in turn a “a non-profit, non-governmental organisation” aimed at “protecting consumers interest [sic] through information and education, and promoting an environment of fair and ethical trade practices.”

Did ASAS abuse its authority? 

An abuse of authority can take two forms: first, the exercise of a power that a decision-maker never had, thereby exceeding its (in this case, self-imposed) scope of authority (aka. jurisdiction). Second, through jurisdictional bias, by allowing partisan interests to interfere with the authority’s purportedly non-partisan decision-making role.

Exceeding its scope of authority

ASAS’s role is to promote “ethical” advertising. This not only includes ensuring advertisements are “truthful” (SCAP, II.5), but also that they are not “offensive to the standards of decency prevailing among those who are likely to be exposed to them” (SCAP, II.2), and that advertisements should not “downplay the importance of the family as a unit and foundation of society; undermine the perception of the family as a place of comfort and security; or discredit mutual love, affection and support amongst family members.” (SCAP II.10).

Currently, there are conflicting reports of the reasons ASAS gave for its take-down order. Mustsharenews.com and Marketing-interactive.com have both claimed that the breach of the shared values of “family as the basic unit of society” was the reason given, while The Straits Times, TODAY, and ChannelNews Asia have all reported that, according to an ASAS spokesperson, Pink Dot’s advertisement “technically does not breach the general principle on ‘Family Values’ in the Singapore Code of Advertising Practice” and instead, ASAS issued its take-down order on the basis that the tagline “may affect public sensitivities due to the issues at hand”.

It is argued that on either account, ASAS has much to answer for.

Assuming that ASAS claimed that Pink Dot’s advertisement “downplayed the importance of family”, or “offended standards of decency”, it would not have exceeded its scope of authority. However, it must then come out in the open and explain how an advertisement that advocates for the “freedom to love” flouts those ethical standards. Otherwise, it would be difficult to avoid accusations of bias while acting within its scope of authority. It would also have to explain, for example, how this advertisement is more “offensive to standards of decency” than the other advertisements that it has not ordered to be taken down. This would be a difficult task for ASAS to do.

However, if we adopt the mainstream media’s account, then it appears that ASAS had exceeded its scope of authority, since the Singapore Code of Advertising does not prohibit the display advertisements that affect “public sensitivities“.

Admittedly, the Code does say that “advertisements should not exploit or fuel conflicts relating to national problems and controversial policies or issues” (SCOP II.9.3). However, ASAS did not claim that the advertisement was exploiting or fueling a conflict; it merely claimed that the advertisement was sensitive, which a different thing altogether. Things that are sensitive make people uncomfortable; things that fuel conflicts are aimed at stirring tensions for self-interested reasons.

Hence, by issuing a take-down order on the basis of “sensitivity”, ASAS acted outside its scope of authority – it attempted to assert a power it never had. Cathay was therefore correct to refuse to comply with the order.

Jurisdictional Bias

On the other hand, even if ASAS acted within its scope of authority, did it apply its power without bias? There are reasonable grounds to suspect that it did not. Many people have pointed out that the Chairman of ASAS, Prof. Tan Sze Wee, is a member of a Barker Road Methodist Church (BRMC), which, according to its website, “consider the practice of homosexuality to be incompatible with Christian teachings” and insists that its members abide by this rule.

However, let us not jump to conclusions. Contrary to what some have alleged, Prof. Tan’s background alone is an insufficient basis to conclude that the decision was biased. However, Prof. Tan’s background certainly calls for a clear explanation by ASAS over how its decisions are made – for example, whether the Chairman can make decisions on his own on behalf of ASAS, or consult, or obtain the approval of members of his Council. It also calls for a comprehensive provision of reasons for the decision, including the provision of examples and case studies where similar take-down orders have been issued in order to demonstrate that the decision was taken without bias, and with consumer interests and only consumer interests in mind.

However, these have not been forthcoming – the lack of transparency concerning ASAS’s decision-making process, and the failure to give sufficient reasons to clear its decision of any possible accusation of bias provides two clear grounds for the suspicion of bias.

So what does ASAS have to answer for?

In summary, ASAS must do the following:

  1. Admit that it has exceeded its scope of authority by attempting to exercise a power it never had, since the reason it gave to Cathay in its take-down order did not fall within the scope of its power (concerning “public sensitivity“).
  2. Alternatively, and whether or not it had acted within its scope of authority, ASAS must release a statement explaining its decision-making process, as well provide a more comprehensive justification for its decision, including the provision of case studies, so as to remove any possible appearance of bias on its part.

A final point to note: ASAS is not a government body, but a private industry regulator that advises a non-governmental organisation (CASE). Hence, its decision-making power does not appear to be subject to judicial control. It has a right to exceed its own jurisdiction, and the right to act with bias without fear of legal sanction (unless the bias is tied to personal financial gain).

However, even though it is not inaccurate to say that ASAS had a right to do what it did, it is not unreasonable to say that, subject to a proper explanation, ASAS was wrong in doing so, since, even as a private industry regulator, it owes a moral duty to its industry members to act within its scope of authority in a non-biased, non-partisan manner.

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Author: Rio Hoe

Rio is the chief editor and co-founder of Consensus SG. He is a recent law graduate from the University of Oxford. His interests include politics, legal theory and political philosophy.

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