Advertisement black spot

The Contempt of Court Act 1981, the Magistrates’ Courts Act 1980, the Children & Young Persons Act 1933, the YouthJustice and Criminal Evidence Act 1999, the Sexual Offences (Amendment) Act 1996, the Cancer Act 1939: these Acts reflect the panoply of reporting restrictions that editors will surely have been familiar with almost from the time they were weaned of their mother’s milk. Well, that may be true of the first five of these statutes certainly, but the inclusion of the Cancer Act 1939 is a little tongue in cheek.

If you have never heard of the Act before you may well be in good company.

Certainly, the editor-in-chief of one local newspaper group was somewhat surprised to receive a letter earlier this year from the trading standards officer of his local county council.

He was objecting to the terms of an advertisement placed in one of the group’s titles by a hypnotherapist recommending an alternative approach to cancer treatment. Under the Cancer Act 1939, it is an offence for any person to take part in the publication of any advertisement containing an offer to treat any person for cancer, or to prescribe any remedy, or to give any advice in connection with the treatment thereof.

The editor was told that he should immediately desist from publishing any advertisements which contravened the Act, and his comments on the alleged breach were invited.

The council’s summary of the provisions of Section 4 of the Cancer Act was quite correct. The prohibition outlined above does not apply to any advertisement published by a local authority, or by the governing body of a voluntary hospital, or by any person acting with the sanction of the secretary of state.

In any proceedings brought under the Act, it is a defence for the person charged to prove that the advertisement was published in such circumstances that he did not know, and had no reason to believe, that he was taking part in its publication; or that the advertisement was published only so far as was reasonably necessary to bring it to the notice of persons of various specified classes, such as MPs, members of a local authority, registered medical practitioners, registered pharmacists and the like.

Knowingly taking part in the publication of an advertisement for the treatment of cancer to the public at large is, however, an offence. Interestingly, claims made by alternative therapists about the efficacy of their treatments for cancer in feature articles, as opposed to advertisements, present no problem at all under the Act.

Editors, of course, bear the legal responsibility for everything that appears in their newspaper and certainly an editor could hardly argue that he was not taking part in an advertisement’s publication: advertisements are as much his responsibility as the splash.

How do matters stand with the particular complaint? The newspaper has responded explaining the circumstances surrounding publication and the local trading standards officer has indicated that a report will be submitted for the council’s further consideration. It is some small comfort to the editor that no prosecution under the Cancer Act can be instituted without the consent of the Attorney General or the Solicitor General and that the maximum fine is only £1,000. This may explain why prosecutions of editors under the Act are, mercifully, as rare as hens’ teeth!

Nicholas Alway Partner in the Media Team, Farrer & Co


Nicholas Alway

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