Staff Report #7
January 29, 2025
To All Commissioners
Re: Advertising Policy
Recommendation
That the report be NOTED and FILED.
Background
The Commission currently holds advertising contracts with three different contractors; bus advertising with Lamar Advertising, shelter advertising with OUTEDGE Media Canada, and bench advertising with Creative Outdoor. In total, annual advertising revenue accounts for approximately $655,000 or 1.2% of annual transportation and operating revenue.
In 2020, the Commission approved an Advertising Policy which applies to all advertising contracts (see Enclosure I) which was developed in cooperation with legal counsel. As the policy outlines, consideration with respect to whether an advertisement should be placed and/or removed subsequent to placement will essentially rely on the Canadian Charter of Rights and Freedoms given the LTC is a government agency, and as such is subject to compliance with same. A 2009 Supreme Court of Canada decision stated that “generally freedom of expression should be permitted on public transit vehicles unless such expression/advertisement is offensive”. The examples defining “offensive” advertising provided by the Supreme Court included content that is discriminatory or advocated violence or terrorism. Further, in making its decision, the Court stated that while a community standard of tolerance may constitute a reasonable limit on advertisement considered to be offensive, excluding advertisements which create controversy is unnecessarily broad. Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society.
In conjunction with the approval of the Advertising Policy, the Commission also amended specific advertising contracts to remove the reference to the Canadian Advertising Standards as part of their advertising review process. The rationale for this amendment noted that Ad Standards is not a government agency, but rather a non-profit self-regulatory body for the advertising industry. Further, the “Canada Code of Advertising Standards” is not a law, but rather a code created by Ad Standards. Although Ad Standards can review complaints and ask advertisers to remove ads; they do not have any enforcement power.
In the event that any of the contractors are asked to place an ad where there is question as to whether it complies with the LTC Advertising Policy, administration is provided with the ad copy and asked for approval. When reviewing proposed advertising of this nature, administration assesses the ad copy against the guiding principles of the Policy as set out below:
- The Commission recognizes that the Charter rights of advertisers will occasionally conflict with the rights of other individuals and groups. The Commission will strive to seek an appropriate balance whenever an issue of competing rights arises.
- The Commission will be guided by the principles of the Human Rights Code in avoiding discrimination against advertisers and members of the public.
Over the years, there have been a number of advertisements placed on LTC services which have resulted in negative community feedback and requests to have ads removed, including but not limited to the following:
- Numerous pro-life advertisements (national campaigns)
- Virgin Radio Bus Wrap depicting musician Katy Perry (national campaign)
- My Top Drawer Lingerie (local retailer)
- The Stag Shop (local retailer)
- Numerous local politician’s ads
In 2018, a pro-life advertisement was removed based on a Canadian Advertising Standards assessment. The ad included the wording “Canada Has No Abortion Laws”. This removal resulted in legal action against the Commission and the subsequent LTC Advertising Policy adopted in 2020. In addition to the adoption of the new policy, the ads that had been previously removed were re-installed on buses at the Commission’s expense. None of the other ads listed above were removed prior to the end of their contracted placement period.
The most recent advertisements that are resulting in requests for removal are a “Let Kids Be – Put the Brakes on Medical Transitions for Minors” (running on 10 buses) until February 19, 2025 and a counter ad “Protect Trans Kids – Trust kids when they tell you who they are” (running on 12 buses until March 16, 2025). Both of these ads were reviewed by administration prior to being posted, and both were considered to be within the guiding principles of the Policy.
Contacts have been received both in favour and against both of these ads, as have requests to have them removed. When responding to contacts regarding advertising, the following points are articulated:
- the ad in question complies with the LTC Advertising Policy (including a link to the policy on the corporate website)
- the ad does not use offensive/graphic images
- advertising on LTC buses, shelters and benches does not necessarily reflect the views or values of the London Transit Commission
- LTC is subject to the Canadian Charter of Rights and Freedoms. The Supreme Court has found that public transit authorities have limited ability to deny advertisements in order to protect the right to freedom of expression. LTC is respecting its obligations in this regard.
Undertaking an assessment in an effort to weigh the rights of a group placing an advertisement against the rights of a group opposed to the position of the advertiser would require a detailed legal analysis, and should a decision be made to refuse an ad based on protecting the rights of one group over an opposing group, a legal challenge is likely to occur.
Any changes to the LTC Advertising Policy would require legal review to ensure the Policy remains consistent with the Commission’s legal obligations as defined in the Supreme Court ruling. Further, should changes be made, they would require concurrence and/or re-negotiation of current contracts dependent on the nature of the changes, noting should the nature of the changes limit the contractor’s ability to place advertising, revenue may be impacted.
Enclosure
Recommended by:
Kelly S. Paleczny, General Manager