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THE

SCOTTISH LAW REVIEW.

VOL. XXIII.

JANUARY, 1907.

No. 265.

THE LAW CONCERNING ADVERTISING. THE character and range of advertising have made remarkable progress during the last decade. The art has advanced year by year, and to-day the extent of its volume and the variety of its artistic production have reached a very high point. This is specially noticeable in mural and magazine advertising, and if one examines any large city hoarding or the pages of a popular periodical, the range of advertisements and the amount of pictorial talent exhibited are astonishing. Railway companies are among the leading advertisers, and not long ago the London & North-Western line, one of our most conservative railroads, issued an interesting novelty. Not content with the beautiful guide books and artistic pamphlets which are a feature of this company's advertising, the directorate put out a series of charming picture post-cards illustrating the excellences of their travelling routes. These cards, though a charge is made, have sold in millions, and have certainly proved a more effective advertisement than the orthodox travel literature. It is undoubted that a vast expense is incurred in advertising and that a very valuable property is thereby created, and where these elements exist keen trade rivalry and constant change of advertising medium are only to be expected. The enterprising puffer does not rest content (if he can do better) with the stereotyped forms of his branch of the art, but is always ready to pick up and exploit a novelty. In such a highly electric atmosphere a knowledge of advertising law is of great practical consequence, and a short sketch of some of its leading features may prove acceptable.

Advertising law falls under two textual heads-municipal rule and the common law of nuisance. The leading object of municipal regulation is mural advertising, and two policies have been observed in the legislation on the matter,-one known as the Farnworth clause, which gives the local licensing authority, who are the magistracy, a limited power of veto,

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and the other as the Dover, where an absolute control over all mural advertisements is conferred on the same authority. The Farnworth clause is the most common type and is contained in the Burgh Police (Scotland) Act, 1903, which sets forth the general legislation on this subject. That statute (sec. 77) makes it unlawful without the consent of the Town Council to erect or to use any hoarding or similar structure of more than 12 feet in height for advertising purposes. The word "structure" is there given as including any moveable structure (except a board or boards personally carried, not exceeding in size 4 feet by 2 feet) used primarily as an advertisement or an advertising medium, and power is given to pass bye-laws for the regulation, control, and use of advertising hoardings and similar structures. The Dover clause, on the other hand, is found in the Edinburgh Corporation Act, 1899. Sec. 45 of that Act enacts that no person shall erect or exhibit any advertisement upon any land, house, building, or structure, except on such sites, hoarding, or other structures as the Corporation may license. These advertisements, however (not being illuminated), are excepted from the operation of the section: advertisements exhibited within the window of any house or building, or relating to the trade or business carried on within, or to a sale, feu, or letting of such land, &c., or any effects thereon, or to any sale, entertainment, or meeting held in or upon the same relating to the business of any railway company, or exhibited inside any railway station. "Advertisement" is declared to mean any word, letter, model, sign, placard, board, notice, decree, or representation, whether illuminated or not, in the nature of, or employed wholly or in part for the purpose of, advertisement, announcement, or direction on, over, or resting upon any land, houses, building, structure, street, court, or public way. The policy of the two clauses, as already mentioned, is diametrically opposite, the aim of the Dover rule being to keep the regulation of advertisements wholly in municipal hands, while the Farnworth clause allows perfect freedom to the public, except in the case of large advertisements. There is no need in this place to discuss the merits of the policy, they being matter of municipal politics, but the construction of several words of style in the legislation, e.g., building, structure, projection, having created difficulty, a short sketch of the cases that have arisen should, it is believed, be interesting.

The meaning of the word "building" depends almost wholly on the special circumstances of the case.

In one set of decisions the Court has taken the view that it

The first of these The Mayor, &c., of There an advertising

is something of of the nature of a house the term contemplates, and in another that anything by way of erection would be sufficient to fall under it. attitudes is illustrated in Slaughter v. Sunderland (1891, 60 L.J. M.C. 91). company surrounded a piece of vacant ground, situated prominently in a street in Sunderland, and proposed to use it as an advertising station. The ground had been previously enclosed by a fence of close wooden boarding, varying in height from 7 to 9 feet, according to the level of the ground. The enclosure was then occupied as a stone mason's yard. The fence in question had been used for advertising purposes by another tenant previous to the company's tenancy. Within the fence there was a shed with a roof, one portion of which was covered in and used as an office by the stone mason, but the greater part was open at the side, having been occupied for dressing stone. In order to obtain greater space for advertising, the company heightened the old wooden hoarding to an altitude varying from 13 to 19 feet, and by way of support to the new structure they put in inside the original fence 25 upright timbers of 7 by 2 inches each, 10 stays of timber 7 connected the boarding on the east

by 2 inches, and

of cross

and west sides of the ground by three pieces to act as ties. The old shed was entirely enclosed, furnished and used as an office, and in the vacant land inside. the enclosure wood was prepared for the use of stations in other parts of the town. It was contended by the town-clerk that the outside erection, having been carried to a height far exceeding anything necessary for a fence, and for a purpose other than fencing, and being stayed, fastened, and tied together as above set forth, was a "building" within the meaning of a bye-law which required every person erecting a new building to make the walls of stone or brick. The Justices convicted, but the sentence was quashed by the Appeal Court. Mr. Justice Cave there said, "To begin with, there are no walls in the ordinary sense, though the boarding does assume the shape of walls, but these are not walls within the sense of the bye-law which contemplates the walls of a building with, at any rate, foundations and a roof. It passes my ability to understand how it can be said that a part of a building is a building. Then we come to bye-law 12- Every person erecting a new building shall provide in the rear thereof an open space exclusively belonging thereto to the extent, at least, of of the entire area of ground on which such building shall stand, and in no case less than 150 artificial feet, such open

spaces being in every case free from any erection thereon. The whole sense of this rule, and, in fact, all the rest of these rules, points to a building which, even if it be not a domestic structure, is at least to be a structure roofed in and capable of affording protection or shelter. It is startling to be told that a structure which consists only of walls, and which is not intended to consist of anything else, and never intended to be a building in any sense of the word, is nevertheless a building within these bye-laws. I am clearly of opinion that they do not include the structure in question." An analogous Scotch case is Malcolm v. Lang (1892, 29 S.L.R. 617), and similar English decisions are Foster v. Fraser (1893, L.R. 3 Ch. 158), a feu contract case, and Boyce v. Paddington Borough Council (1903, L.R. 1 Ch. 116, p. Mr. Justice Buckley). The opposite view on this question by the bench is to be found in Wood v. Cooper (1874, 3 Ch. 671), where the object said to be a "building," and upheld as such by the Court, was a large trellis screen. The facts were these In a lease the lessee came under an obligation "not without the licence and consent in writing of the lessor being first obtained, to erect or build, or cause or permit to be erected or built upon the said piece or parcel of ground hereby appointed and demised, or upon any part thereof, any other building whatsoever, save and except a stable and coach-house." A few years later he commenced to erect a hoarding or trellis-work screen fronting pursuer's premises, about a foot from the boundary fence (which was a brick wall 8 feet high), 58 feet 6 inches in length and standing 12 feet above the boundary wall. Pursuer sought interdict on the ground that the screen was a building within the meaning of the covenant, and that it was an annoyance, nuisance, and disturbance to him, and interfered with the pleasurable enjoyment of his home. It was replied that it was a building of the nature of a dwelling-house that the covenant had in view. The interdict was sustained. Mr. Justice Romer said, "This screen is a very substantial erection, and a firm one. It seems to me that it is intended to be and, unless restrained, would remain a permanent part of the wall, close to or against which it is erected. At any rate, it will act in the same way, as far as the plaintiff's house is concerned, as if it had been a wall added to a portion of the former existing wall. I think, undoubtedly, if it had been built of brick it would have been admitted to have been a breach of the covenant, and I do not think the fact that it is made of wood makes any difference under the circumstances. As I have said, it is a permanent erection, and a substantial one,

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