New legal advice supports councils taking action to ban polluter ads

New legal advice
commissioned by the New Weather Institute for Badvertising and Adfree Cities gives local authorities the green light to end high-carbon advertising on the advertising sites they control. This new legal opinion provides assurance to councils that they are within their rights to introduce low carbon advertising policies in line with anti-pollution goals; and that curbing adverts for environmentally-damaging products and lifestyles, such as cars, airlines and fossil fuel companies would be both rational and proportionate. 

The legal opinion, written by Richard Wald KC of 39 Essex Chambers, London,  is the latest step in the growing movement to end advertising from major polluters. The review sought to assess any legal issues potentially arising from advertising policies that align with councils’ climate targets, and addressed two main points: any legal risks attached to a policy to end high-carbon advertising; and the design of a lawful policy.

The review concluded that it is within local authorities’ power and discretion to exclude adverts and sponsorships for high-carbon products and services from sites they control. It also concludes that there is a strong legislative background to do so, given that the need to reach net zero carbon emissions is part of the UK’s primary legislation, and that the UK’s latest carbon budget explicitly recognises the need to reduce demand for high-carbon activities. As a result, the legal opinion concludes that councils can act with minimal legal risk and that:

  • The adoption of an advertising policy banning ‘high-carbon’ advertising is squarely within the powers available to local authorities and therefore prima facie lawful.
  • The legal risks of adopting a high-carbon advertising ban are limited and the prospect of a successful challenge, low.
  • Councils have broad scope to design a policy according to their discretion, despite a lack of national definition of ‘high carbon’, with effective precedents already in place.

A template policy to curb polluting advertising: As well as confirming the rationale and legal grounds for action to curb high-carbon advertising, the legal opinion highlights Cambridgeshire County Council’s Advertising and Sponsorship Policy, which restricts advertising for fossil fuels, and other products and services that do not align with the council’s climate objectives; naming this policy as a useful and thorough template for other councils. 

We believe that this legal review now assuages concerns regarding legal repercussions for taking action to end advertising for the worst climate polluting products and lifestyles. Almost everyone in the UK lives in an area where a climate emergency has been declared by one or other tier of government, and councils have a legislative mandate and public duty to act on climate change. This review provides strong evidence that a policy banning high-carbon advertising is not only lawful, but also proportionate and necessary. 

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