The ASA Rules allow for two types of appeal. A Complaints Board Decision may be appealed, and a Chair of the Complaints Board’s Ruling may be appealed – see Rules of the Advertising Standards Authority Inc., Second Schedule, 6. APPEAL.
Any party to a decision must notify the ASA of their intent to appeal in writing within 14 calendar days of receipt of the written decision. The substantive appeal application must be lodged with the ASA within 21 calendar days of receipt of the written decision.
Removal of the advertisement
If a complaint has been upheld, parties are requested to remove the advertisement. This is not affected by the appeal process. If a decision to uphold a complaint is overturned on appeal, the advertisement may be used again.
Grounds for Appeal
Please note, disagreement with a decision is not grounds for appeal.
There are five grounds for appeal:
- The proper procedures have not been followed.
- There is new evidence of sufficient substance to affect the decision.
- Evidence provided to the Complaints Board has been misinterpreted to the extent it has affected the decision.
- The decision is against the weight of evidence.
- It is in the interests of natural justice that the matter be reheard.
This ground for appeal is likely to be met if the Secretariat or the Complaints Board have not followed the procedures set out in the ASA Rules prior to the complaint being adjudicated on. This could include parties to the complaint not being given an opportunity to respond, or the Board paper missing information provided by the parties. This ground for appeal may also be met if a Complaints Board member with a conflict of interest did not declare it and adjudicated on the complaint.
This ground for appeal is likely to be met if new evidence of sufficient substance to affect the decision is available. The Chairperson of the Appeal Board will assess the quality and relevance of the evidence provided and whether it amounts to new evidence. Is it evidence that was not previously available, that could materially affect the decision, or evidence that was available but not provided to the Complaints Board.
This ground for appeal is likely to be met if the appeal application details how the Board has misinterpreted evidence and how that has materially affected the decision. The Chairperson will assess the quality and relevance of the information provided and whether the decision has been affected.
Weight of evidence
This ground for appeal is likely to be met if the appeal application shows the Board did not give appropriate weight to information that was available to it when making its determination and that has materially affected the decision.
This ground for appeal gives the Chairperson the option to rule that an appeal should be accepted for reasons not specifically listed in the other grounds for appeal and based on the justice of the case.
Chairperson’s review of Appeal applications
The Chairperson of the Appeal Board reviews all appeal applications. If the application does not meet any of the appeal grounds, the application will be declined, and a ruling issued.
If the Chairperson determines there are sufficient grounds to accept an appeal application, an accepted ruling will be issued and parties to the complaint will be invited to respond. In accepting an appeal application, the Chairperson has discretion to determine if the appeal will be referred to the Appeal Board or returned to the Complaints Board.
Broadly, it is accepted that appeals allow reconsideration of the merits of a decision and rehearings are about reconsidering whether there was a substantial miscarriage of justice.
The Chairperson may refer an appeal to the Complaints Board for a rehearing, for example, if the proper procedures have not been followed.
Appeal applications that establish grounds with regard to evidence (new evidence, misinterpretation, weight of evidence) are likely to be referred to the Appeal Board.
Chair of the Complaints Board may set aside the previous Decision
Pending determination of the appeal by the Appeal Board or a rehearing by the Complaints Board, the Chair of the Complaints Board may set aside the previous decision.
As a body with a public decision-making function, decisions of the Complaints and Appeal Boards are subject to judicial review under the Judicial Review Procedure Act 2016.