Hello all.
I'm posting here because I was looking for case law on the same thing and my searches brought me through to this discussion. I work for a council and it's my job to clean graffiti within our district. I thought passing on this message will help clear up what can and can't be done.
This is written by a respected lawyer. He is replying to a question raised by another council about cleaning up after another such 'legal' campaign.
I hope you find this useful.
Mike.
"This is a practice commonly known now as “griming” in London. Unfortunately for [a named company] they are only partially right, if they are right – it is illegal. It is a form of criminal damage, as evidenced by the very fact that you have been required to get them to remove it. It is indeed no less an act of graffiti simply because it is done for corporate commercial gain. Criminal damage need not be permanent and it is sufficient damage if the person in control will be put to time and / or expense to put the highway back into a satisfactory condition.
Section 132 Highways ACT 1980 provides:
A person who, without either the consent of the highway authority for the highway in question or an authorisation given by or under an enactment or a reasonable excuse, paints or otherwise inscribes or affixes any picture, letter, sign or other mark upon the surface of a highway or upon any tree, structure or works on or in a highway is guilty of an offence and liable to a fine not exceeding £100 or, in the case of a second or subsequent conviction under this subsection, to a fine not exceeding £200.
I am not entirely convinced that there is a loophole here. I believe the intent [of the legislation] was clearly to prohibit application of unauthorised marks on highway surfaces and it is extremely disingenuous to claim that this form of marking does not fall within that intent. In order to carry out this operation those concerned affixed a picture or mark (the stencil) in order to leave the permanent mark.
I would be inclined to charge both offences and see what a court makes of it.
Of course, you could always remind them that it does fall within the definition of an advertisement - “any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used, or designed or adapted for use, and anything else principally used, or designed or adapted principally for use, for the display of advertisements”.
It is not exempt from regulatory control and does not attract deemed consent.
To quote from the Control of Advertisements Regulations:
All advertisements, other than the excepted classes mentioned in paragraph 9 above, require consent before they can be lawfully displayed. Any person who displays an advertisement in contravention of the Regulations is guilty of an offence under section 224(3) of the 1990 Act and liable to a fine on conviction.
I have just googled this and come across the above. I personally would not use this method but I would be interested in whether there has been any gain, specifically from this form of advertising and if the answer is yes have the people contacting you mentioned the reverse graffiti as the reason for calling.
Rob
