Marketers may be accused of many things, but being antisocial generally isn't one of them. However, they now face the spectre of being served with an Antisocial Behaviour Order (ASBO), potentially leading to a five-year jail sentence, thanks to Camden Council's policy of directly targeting marketers who sign off flyposting campaigns.
Last week it emerged that the London borough is so fed up with companies treating the £1000 fine attached to the breach of the Town & Country Planning Act as a reasonable price to pay for advertising that it has now found an effective way of focusing the minds of marketing's decision-makers.
The council has applied for ASBOs against the advertising managers at record companies Sony and BMG. The music industry is by far the worst flyposting offender, although the technique has been widely adopted by a variety of brands keen to appear edgy and 'street' to young people.
Neighbouring Westminster Council has also cracked down over the past few months. It has yet to resort to ASBOs, which are generally dished out to tearaway teenagers who have caused 'harassment, alarm or distress'.
However, it has threatened several record company directors with personal prosecutions. 'We found that the amount of flyposting for records was dramatically reduced after that,' says a Westminster Council spokeswoman.
Legal implications
Such actions would certainly seem to spell the end of the flyposting activities in which marketers and agencies have indulged for years. One marketer for a major FMCG brand that has planned flyposting campaigns in the past says: 'I would struggle to persuade any of my bosses to sign off on flyposting now.'
There has been some wilful muddying of the waters by the marketing industry in recent years on the subject of flyposting. As the technique has become more popular with brands seeking an injection of urban cool, agencies often encourage their clients to go down this route with the advice that they can get away with it because some councils turn a blind eye.
But the practice is illegal, being in direct contravention of either the Town and Country Planning Act or the Highways Act (depending on where the messages appear), which many clients are unaware of.
One FMCG marketing director found herself in hot water two years ago when a flyposting campaign planned by her PR agency excited a little too much interest from authorities. The agency was subsequently sacked after the marketer narrowly avoided her company being prosecuted.
Chalk drawings on pavements is becoming another popular ambient media technique. It was used by FCUK in a recent campaign to promote its radio station. However, it too is illegal, contravening section 132 of the Highways Act. Camden Council has already successfully prosecuted Time Out and Channel 4 for making use of it.
Another big youth brand, Sony PlayStation, has gradually phased out its use of classic flyposting over the past three years, as councils have become hotter on enforcing the law.
But it still uses the 'grime graffiti' technique pioneered by ambient media agency Diabolical Liberties.
A campaign for PlayStation Experience last summer saw dirt on park benches, cars and shop windows stencilled through with the slogan 'Fun anyone?' According to a Camden Council spokeswoman, this falls under the definition of illegal advertising.
But Sony PlayStation marketing director Alan Duncan responds: 'We'd want to take full legal advice on that, but clearly the desire to be seen as a cool urban brand sits alongside the increasing need to be a good corporate citizen.'
A spokeswoman for Diabolical Liberties says she wouldn't class grime graffiti as illegal. 'It's like somebody writing with their toe in the sand - would that be illegal too?' she asks.
Official sites
One solution, both for marketers worried about a jail sentence and local authorities trying to clean up their streets, is authorised flyposting sites.
Over the past couple of years, small companies offering a half-way house between a regular poster site and flyposting have sprung up. They work with councils to guarantee that ads will only appear on their own sites, and take on the role of cleaning up the streets around them.
Glasgow company Non Stop Advertising sells ad space on vinyl boards on the inside of the windows of empty shops, while City Centre Posters has erected 20 'columns' in Cardiff city centre. Of the ads appearing there, 40% are from theatres, clubs and other music-oriented brands, although there has been some attention from bigger brands - they are currently carrying a campaign for Red Bull. Diabolical Liberties often places ads on such sites in Cardiff, Swansea, Liverpool and Edinburgh.
'Cardiff Council has been very forward-thinking,' says Michael Chesters, director of City Centre Posters. 'It used to have a big problem with flyposting but has found that this has reduced it.'
Ironically, Chesters has tried to get Camden Council interested in his scheme before, but his approach fell on deaf ears. This week he is due to present to them again.
Adam Clyne, managing director of youth marketing agency The Lab, has planned various flyposting campaigns. He thinks it would be a shame if flyposting were lost to the industry, as young people enjoy the medium.
'They like to be teased with messages in places they don't expect them. People flock to see the images of (street artist) Banksy - flyposting shouldn't be any different.'