I've been reviewing TFL's Guidelines for Advertising on Licensed London Taxis with regard to the TAXI newspaper issues with COs.
The Introduction states that the guidelines apply to :
" Advertising that appears on or in taxis and includes information presented to passengers ( " taxi advertising " ) "
This is important, as " information presented to passengers " could be taken to include any materials in the passenger compartment, e.g. a newspaper. This renders ineffective, in this instance, the argument that a newspaper is not an advertisement.
As regards legality, TfL claims that the guidelines are issued pursuant to the GLAA 1999 as they are " conducive or incidental to its ( i.e. TfL's ) functions "
The guidelines also refer to the LCO 1934, which says that " a licensee shall not, otherwise than in accordance with the directions of TfL ... cause any object to be displayed.. by way of advertisement ".
I would suggest that this section may not apply to the CO/TAXI issue, as it refers to advertising only. It doesn't matter if the guidance includes any object, the 1934 legislation is about advertising, you can't work backwards !
Nonetheless, TfL would appear to have the power to dictate what is displayed in cabs and the guidelines therefore seem to have legal force within their own terms and conditions.
The guidelines then refer to the TfL Advertising Policy, and state that :
" taxi advertising * will not be permitted unless it complies with the Advertising Policy and these guidelines "
* as you have seen above, this includes " information presented to passengers "
Moving on, the " compliance " section then says that :
" a relevant person ( e.g. a driver ) is not required to seek prior approval from TfL for any advertisement ... unless .. ( basically unless it's a new electronic system or in a foreign language ) "
" however if TfL considers an advertisement may not comply with these guidelines, TfL may request a copy be sent to TfL ... after considering the information TfL shall determine whether the advertisement complies with these guidelines ... if TfL considers the advertisement .. does not comply.. TfL may require that an advertisement .. be removed either immediately or within a specified period "
but :
" if TfL considers that the advertisement should be removed , TfL will inform the relevant person of its decision on writing and will provide reasons ... "
The decision as to whether or not an advertisement complies is down to the " relevant custodian nominated (by TfL ".
And again :
" if the advertisement is rejected the notification ( above ) shall include details of the reasons why the custodian considered that the advertisement did not comply with the standards contained in this policy "
Rather confusingly, presumably in the wake of hundreds of cabbies driving around with " Totally failing London " or anti-app roundels, TfL in 2014 issued Notice 06/14, which is concerned with " Unauthorised Signage ".
This states that :
" anyone wanting to display or provide any printed or written material on the inside or outside of their vehicle or to passengers , which does not meet the advertising guidelines, is required to seek prior approval from TfL before doing so "
As the arbiter of whether the guidelines apply is " TfL's reasonable opinion " then it is not clear how someone who plans on making material available in a cab is supposed to know whether the guidelines would be met or not, so whether prior approval is required or not. There will obviously be some cases where it is clear, there will be others where it is not.
So we are down to process .
1) it would appear that TfL does have the right to require removal of materials it doesn't like, either by using the powers in the guidelines or by issuing new notices.
BUT
2) there is a formal process. If a driver reasonably considers that his materials are in compliance with TfL's advertising guidelines, but TfL do not, a reasonable decision has to be made by the appointed TfL custodian and that decision, and the reasons for it, have to be notified to the driver in writing .
The only one of the prohibitions in the guidelines that appears to have any relevance to the " TAXI " case would appear to be where :
" the advertisement contains negative references to TfL's services "
( e.g. a " Totally failing London " roundel )
It is highly debatable whether a newspaper headline stating that an Uber driver had got 12 years for rape is a " negative reference " . It is fact, not opinion, and facts are neither negative nor positive, they are just facts. It would not, therefore, appear to be unreasonable to assume that such materials do not require prior approval by TfL.
So it would appear that a CO is exceeding his/her authority if he/she requires immediate removal of such materials for breach of guidelines. They do not have the authority to make the decision that an object is non-compliant with those advertising guidelines. That decision rests with the appointed custodian and has to be notified to the specific driver in writing on each occasion with reasons. In cases where a driver was very obviously in breach of the guidelines, he could presumably face action, but it is hard to see how that could happen if he genuinely believed ( not unreasonably ) that a newspaper was not in breach.
So if faced with a CO who runs an " Unauthorised Signage " argument, the answer is to say :
" could you tell me in what way you believe the materials clearly breach the advertising guidelines, Sir ? ... I do not believe that they do, so I do not believe that advance approval was required. If you believe that they are in breach, the process is for TfL to ask me to submit the materials to the authorised custodian within TfL for his reasonable determination, followed by his decision in writing, with reasons. Would you like my address so the relevant authorities in TfL can consider the appropriateness of such a request ? " .
I understand that Taxileaks has asked TfL some 85 times for clarification of its policy in the case of TAXI, and has received no reply. It cannot be said, therefore, that the cab trade did not attempt to put itself in a position to know whether, in the reasonable opinion of the custodian, the display of the TAXI in question was a breach of guidelines or not. If the relevant custodian at TfL made public a reasonable opinion that the TAXI newspaper was in breach of guidelines, with reasons, then I presume that drivers would no longer be able to claim that they believed it was, and COs would presumably be able to ask drivers to remove the offending object immediately.
I hear that some COs are trying to run with the " any misbehaviour " prohibition in LHCA 1843 S28. The section says that Cabbies should not be drunk, indulge in insulting or abusive language, insulting gestures or " any misbehaviour ". The context clearly implies that such misbehaviour would be of a similar nature to the other prohibitions, i.e. some sort of " improper " conduct. While overenthusiastic rearrangement of one's trouser contents might well be considered as " misbehaviour " in this context, it is difficult to conclude that a genuine attempt to warn passengers of the dangers presented by PHV drivers, as graphically illustrated by the recent alarming figures from the Metropolitan Police, is at all " misbehaviour " ... quite the reverse.
So the response :
" I am afraid that your statement is contextually inaccurate and no misbehaviour, as contemplated by the legislation, has occurred. "
is called for.
Finally, COs are not allowed forcibly to remove your property. If they genuinely believe that they have a right which they do not, then it may not be theft under the Theft Act, but it'll be illegal some way or other and they should be warned that they are committing a criminal act .
The above is a layman's reading of the rules, legislation and practice. I don't pretend to be a lawyer, these are just " I reckon " musings and I accept no liability in their respect !
0 Response to "CO Powers, TfL Advertising Policy and the TAXI newspaper. By Vaughn Williams"
Post a Comment