Co-regulation of advertising in the United Kingdom: regulators as corporate bodies and the effect on citizen empowerment

The subject matter of this thesis is a regulatory innovation termed co-regulation: a mode of regulation that includes formal involvement of both state and non-state actors. Its emergence and development is the result of two broad and significant changes in the nature of the statehood: the emergence of the regulatory state and the shift from government to governance. In the regulatory state, the dominant mode of intervention in economy and society is regulation, thus forms such as co-regulation are used to ‘govern’ or ‘steer’ the society. In addition, with the shift to governance, there is a greater reliance on non-state actors to perform this ‘steering’.

Since co-regulation is used to implement public policy objectives, which has traditionally been the role of government departments, but it implies formalized and substantive role of non-state actors, it is a qualitatively new regulatory development that justifies research interest into its nature. Consequently, it should be evaluated as any other form of governance: to what extent it can be described as democratic, and precisely this is the basis for the normative framework developed for this thesis that has been used as a tool to evaluate the nature and quality of co-regulation.

One of the basic premises of this research is that any form of governance should have as its ultimate goal the achievement of public interest objectives. It has been further argued that public interest objectives can be achieved only if institutional structures of regulatory bodies enable transparency, deliberative participation by the citizens, and enable citizens to hold the regulators to account. Only by providing such structures, co-regulatory bodies would empower the citizens to be the ultimate authority and could thus be considered a democratic form of governance.

The case studies chosen to evaluate whether this normative ideal has been achieved in practice comprise three different bodies: Ofcom, ASA and ATVOD. What has in particular been looked at is the way Ofcom handled the delegation of regulatory functions to ASA and ATVOD, and the way these bodies dealt with the regulation of 3 alcohol ads and product placement. These studies involve an element of controversy and conflicting interests and as such represent the most suitable test in order to determine whether the possibilities offered by co-regulation to be a truly democratic form of governance have been achieved.

The main conclusion reached is that, mainly due to NPM reforms, citizens are confined to the role of the consumers, where their active engagement is seen in terms of complaints and regulators are held accountable for the level of service they provide in handling these complaints. However, this does not empower the citizens. Therefore, it appears that Ofcom, ASA and ATVOD are not characterized by institutional structures
that would enable democratic governance: there are no transparent institutional structures that would enable the public to perform the role of the citizens and deliberate regarding regulatory decisions and hold Ofcom, ASA and ATVOD to account. The institutional structures modelled on the premises of corporate governance are not empowering citizens, but are instead creating consumers.