Do the 65 production companies who signed the open letter to Campaign realise what they have done?
By Marcus Honesta.
Last week we reported to you on a process that has, to the best of our knowledge, been a common practice ever since television advertising was invented. It is known as “Bid Rigging”. We cannot help but wonder, if the production companies who signed the open letter to “Campaign UK” have opened Pandora’s Box. (Today the phrase “to open Pandora’s box” means to perform an action that may seem small or innocent, but that turns out to have severely detrimental and far-reaching negative consequences).
By acknowledging that this process is commonplace, and that they now want nothing further to do with it clearly identifies that not only does bid rigging exists (and has done for years) but that they were all up to their necks in the propagation of it.
Now that the US Justice Department is having a close look at its legality and what crimes may have been committed they have decided to complain about it. (A bit late guys.)
Are they saying they knew about it but they didn’t participate?
Or do they just see and opportunistic way of ending the hold agencies have had over them for years?
One can only assume that the actions of the American Justice Department has given them some pluckiness to stand up and finally say we don’t want to be part of this as their morally self righteous hissy fitted letter attests.
This will no doubt have some unfortunate side effects. By writing the letter they have confirmed what everyone knew but kept quite about. One can only assume that when it suited them, in the past, at least some of the 65 signature production companies were accessories to illegal activity.
Yes you read correctly, Bid Rigging is illegal.
Under the Westminster Common-Law System, a crime of “aiding and abetting or accessory” is committed when:
“A criminal charge of aiding and abetting or accessory can usually be brought against anyone who helps in the commission of a crime, though legal distinctions vary by state. A person charged with aiding and abetting or accessory is usually not present when the crime itself is committed, but he or she has knowledge of the crime before or after the fact, and may assist in its commission through advice, actions, or financial support. Depending on the degree of involvement, the offender’s participation in the crime may rise to the level of conspiracy”.
How Are Aiding, Abetting, and Accessory Defined?
As with all crimes, the specific elements depend on the state where the crime takes place. In general, aiding refers to differing degrees of support and abetting involves encouragement. Accessory usually involves actions taken to protect the perpetrator after the crime is committed.
If you were to serve on a jury in a federal court, you would be instructed that the crime of aiding and abetting requires the prosecution to prove, beyond a reasonable doubt, that:
- A crime was committed;
- The accused aided, counseled, commanded, induced or procured the person committing the crime;
- The accused acted with the intent to facilitate the crime; and
- The accused acted before the crime was completed.
Similarly, you would be instructed that the crime of Accessory After The Fact requires proving that: the
- The accused knew that a person committed a crime; and
- The accused assisted that person with the specific purpose or design to hinder or prevent that person’s apprehension, trial or punishment.
Presumably they have thought this through, and have a plausible explanation as to why only now have they decided to complain. Perhaps it was the intervention of the American Justice Department that has provided them with what they see as an excuse to vent their spleens.
Below is the open letter to the Editor of Campaign UK. One can only assume that they have concluded that the US Justice Department is not a subscriber to Campaign, otherwise those with offices in the USA may have just shone a very bright and unwanted light upon themselves.
Dear Campaign editor,
As production companies, we are used to and expect to fight hard to win work in the open and competitive market. That is what we expect. But a bidding system rigged against us isn’t – a system by which the agency inviting our bid is also contemplating bidding its own in-house production department for the work, or might do so when it has our bids in.
We don’t think such a system is capable of being operated fairly.
The IPA has advised agencies to “ensure it does not use any information disclosed to it by a production company to enhance its own bid”. That is impossible to achieve in practice. A production company’s creative ideas and methodology are in its treatment and budget. It is impossible for an agency receiving those to un-know them when working on their own bid.
Further, it will have the details of the amount that each production company has bid and can tailor its bid to undercut them – it can’t be seriously suggested that an agency that wants its in-house production company to do the work is going to bid more than the independent bids it has seen.
So, even with the best of intentions, the process will be rigged against us and we don’t want to be part of it. We genuinely don’t believe it is in the interests of agencies either – a fair open and transparent process is what advertisers want – and any system that isn’t risks dragging the industry into the murky waters that have brought about the US Justice Department’s investigation into bid rigging – which would be illegal in the UK too of course.
Let’s put as much distance as possible between the way we work in the UK and what has gone on in the US by having an industry-wide agreement here that an agency will never bid independent production companies when it is contemplating doing a production itself might do so once the independent production companies’ bids are in. By doing so we can stand united as production companies and agencies to protect the integrity of this great business.
Of course, all of this applies to production in the widest sense – post production and editing companies too.
Yours faithfully, indeed! 65 idiots, who haven’t thought through the implications of what they’ve just made such a fuss about.
Perhaps they should have thought more about what Erwin Griswold Solicitor General of the United States (1967–1973)
“The privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized… The Fifth (amendment) is a lone sure rock in time of storm … a symbol of the ultimate moral sense of the community, upholding the best in us”.
It’ll be interesting to see the fallout of their actions.