Archive of Reports – Report on Developments

April 2001

1.

Legislation: Employment Equality Act, 1998

Topic: Ageism in Recruitment Advertising

Who: Equality Officer

When: February 2001

Where: Ireland

What happened: On 25/02/00 Ryanair published an advertisement in the Irish Times newspaper to recruit a Director of Regulatory Affairs. According to the ad it needed a “young and dynamic professional” and that “the ideal candidate will be young, dynamic”.

On 29/12/00 the Equality Officer, following a complaint decided that Ryanair discriminated on grounds of age by causing the advertisement to be published in contravention to Section 10 (1) of the Employment Equality Act, 1998. He ordered Ryanair to pay IR£8,000.

He also ordered Ryanair to publish in the newspaper a statement of at least the same size and prominence as the advertisement complained of, making a clear commitment to equal opportunities policies, specifically referring to all of the nine grounds under the 1998 Act. He ordered that its Employees Guide was to be updated and that new procedures which would “equality proof” all future recruitment, promotion and selection guidelines were to be put in place and that all of its employees were to be informed of this decision. Short deadlines for the fulfilment of this Order were fixed.

Comment:
This Judgement is the first under the 1998 Act which outlaws discrimination on grounds of age and on the eight other grounds specified. It is believed to be the first judgement within the European Union against age discrimination under equality legislation.

2.

Legislation: Consumer Credit Act 1995

Topic: Advertising by Financial Institutions

Who: Director of Consumer Affairs

When: February 2001

Where: Ireland

What happened: Advertisements run in national newspapers by First Active Plc were allegedly in breach of the Consumer Credit Act, 1995. The ads pointed out a reduction in the bank’s mortgage rates. But they published both the mortgage rates and the annual percentage rate (APR), something which is prohibited by the Consumer Credit Act. Under the 1995 Act where an interest rate is shown it can only be the APR, it is not permissible to publish any other rate including the mortgage rate.

Comment: While the Director of Consumer Affairs is investigating this breach, no financial institution has ever been fined for breaching the Consumer Credit Act.

3.

Litigation

Topic: Use of Celebrity Images in advertising

Who: High Court (Lavan J.)

When: March 2001

Where: Ireland

What happened: Olympic Gold medallist Mary Peters sued Ark Life Assurances Ltd because it started an advertising campaign in 1996 and used her image without permission. The campaign showed various historic events one of which was titled ” Remember when Mary Peters won Gold?”. Ms Peters alleged that the advertisement was aimed at taking advantage of her personality, goodwill and reputation. In his opening submissions Counsel for Ms Peters claimed her reputation was being “pirated”. Ms Peters subsequently reached a confidential out of court settlement with Ark Life.

Comment: Use celebrity images only with consent.

4.
Legislation: Electronic Commerce Act, 2000

Topic: Defamation on the Internet

Who: Denis Kelleher B.L., Irish Times

When: April 2001

Where: Ireland

What happened: Ireland has some of the most restrictive defamation laws in Europe and this has now been extended further by the Electronic Commerce Act, 2000. Section 23 of the Act states that all provisions of existing defamation law shall apply to all electronic communications within the State, including the retention of information electronically. This extends the normal laws of defamation which usually require that a defamatory article must be published to simply retaining defamatory material on the internet. This could be a problem for companies engaged in web hosting services or even internet service providers. Employees too may need to police their email systems used by their employees having regard to Section 23 and the recent UK jurisprudence arising from the Norwich Union case.

Comment: It would appear that service providers will no longer be able to rely on the “innocent disseminator” defence which protects newsagents who sell papers containing defamatory material. Until the courts clarify what is meant by “retention of information” any service provider who suspects or is put on notice that they are carrying defamatory material faces heavy penalties.

5.
Litigation

Topic: Advertising of Pornographic Material

Who: Irish Times

When: April 2001

Where: Ireland

What happened: The Irish Times on 12/04/01 stated that police are investigating an advertisement for a hardcore pornography website which was published in “Irish Wedding and New Home” magazine. The publisher denied any knowledge that one of the 13 websites advertised contained pornographic material. As the advertisement contained no company name or logo the publisher did however admit that he should have been more suspicious of it.

Comment:
Publishers are now under increasing pressure to scrutinise advertisements before they are published.

6.
Topic: Television Advertising: Unsubstantiated claims

Who: Advertising Standards Authority of Ireland

When: February 2001

Where: Ireland

What happened: A television commercial for Toyota was the subject of an objection. The commercial concluded with the phrase ” a car that’s good for the planet. Save the future, Toyota”. The complainant queried how a car could be good for the planet and said the ad was neither honest nor truthful and did not take into account the advertiser’s responsibility to consumers. The advertisers responded that the ad referred to a particular car the – Toyota Prius Hybrid – which they described as the world’s most environmentally friendly mass produced car. The ASAI considered the response of the advertisers and noted that no evidence had been offered to prove that the products caused no environmental damage. The Code of Advertising Standards requires that environmental claims should not be used without qualification.. The statement “a car that’s good for the planet” could not be seen as unqualified.

Comment:
The complaint was upheld and the advertisers found to be in breach of the Code for making an unqualified and unsubstantiated claim about their product and the environment.

7.
Topic: Radio Advertising: children, dangerous

Who: Advertising Standards Authority of Ireland

When: February 2001

Where: Ireland

What happened: A radio commercial promoting Shell petrol was the subject of objections. The commercial stated that shell petrol was used in Ferrari Formula 1 cars and in the background a child could be heard imitating the sound of a racing car. At the end of the commercial the sound of a racing car revving up could be heard. Complainants felt that it encouraged young male drivers to drive in a dangerous manner and encouraged speeding in general. The advertisers stated that they had tested the ad in various parts of the country before it was played on national radio and no complaints had been received. They further stated that they were very involved with the Government in road safety campaigns throughout Ireland. Their association with Ferrari was known world-wide.

The Authority looked at the Code of Advertising Standards which states that an advertisement “should not encourage dangerous behaviour or show unsafe practices except in the context of promoting safety. Particular care should be taken with advertisements directed at or depicting children.”

Comment:
The complaint was upheld as the Authority decided that the combination of the sound of racing cars, the use of a child’s voice and the fact that the product was aimed at ordinary motorists for whom the practices of Formula 1 racing drivers would be highly dangerous put the ad in breach of the code.