ASA Adjudication on Dolce & Gabbana

Ad

A TV ad, for Dolce & Gabbana watches, showed people in what appeared to be a disco or studio environment. It incorporated quickly cut images and flashing light sequences set to music.

Issue

The viewer, who suffered from photosensitive epilepsy, believed the ad was irresponsible and inappropriate for broadcast because, after seeing only a short part of it, she experienced an epileptic seizure.

BCAP TV Code

Response

Dolce & Gabbana (D&G) explained that the fashion, music and fun content of the ad was designed to reflect the world of young people.  They said the ad had passed the Harding Test and submitted a certificate from Harding FPA (Flash and Pattern Analyser) for the ASA's attention.

Performance Communications (PC), the agency that dealt with D&G in the UK, said they regretted that the complainant had suffered a seizure.  They explained that, because of its disco context, the ad was subject to the Harding FPA Test, which was specifically designed to counter the risk of broadcast programmes triggering photosensitive epilepsy.  They explained further that the ad received a 'PASSED (with caution)' certificate, which granted permission for it to be broadcast in the UK.

The Broadcast Advertising Clearance Centre (BACC) said, despite the agency's confirmation that the ad complied with guidelines for flashing imagery, they had conducted their own Harding test to double-check the ad's compliance.  They reiterated PC's explanation that the ad 'passed with caution'.  They said the system detected flashing above the guideline criteria for amplitude (20 cd/m²) and frequency (3 Hz) but the permitted flash area of 25% was not exceeded.  They explained that the ad would have failed the test had it exceeded guideline criteria for frequency, amplitude and area.

The ASA consulted Ofcom for further analysis of the ad.  They explained that the Harding test was used extensively in industry to check for compliance with the guidelines, but pointed out that it was a proprietary device that had no regulatory status.  They said they had witnessed the ad tested on a Harding machine by an expert; the demonstration had shown that the ad passed all of the device's tests.  They said there were periods during the ad when the test indicated that the flash rate and brightness parameters had been exceeded but, in those instances, the flash did not occupy enough of the screen area for the ad to fail the test.  They said the expert who demonstrated the test believed the ad comfortably passed.

Ofcom said, although they recognised the value of automated measuring equipment to reduce the incidences of non-compliant material being broadcast, and potentially for the analysis of complex material, they did not endorse any particular equipment and instead used manual analysis.  They explained that manual analysis was an intensive task and occasionally, with very complex material, the levels of uncertainty inherent in the measurement techniques available meant that it was not always possible for them to definitively evaluate whether or not material was compliant.  

They said they had assessed the D&G ad manually and identified two sequences with more than the maximum allowed three flashes in one second but, because of the complexity of the images, it had not been possible to say whether they had also exceeded the screen area and luminance change thresholds.  They said, however, there were no clear breaches and believed, on balance, although the material was clearly complex and could be borderline, their manual analysis gave no evidence to suggest that the material was actually in breach of the guidelines.  

Ofcom added that, although flashing effects were not used continuously in the ad, there were incidences of flashing throughout, albeit with short periods between them.  They said the Ofcom Guidance Note on Flashing Images and Regular Patterns in Television referred to the possible risk of seizure that could result from showing prolonged sequences of flashing that were otherwise compliant.  They said the Harding test did include the Extended Failure test - an assessment of extended sequences of flashing - and the ad had passed that aspect of the test.  They pointed out, however, that there were no agreed limits for testing extended sequences of flashing and the Harding machine used its own proprietary definition.  They therefore urged advertisers to exercise caution when contemplating the use of prolonged sequences of flashing effects even when, taken individually, they were compliant with the recognised guidelines.   

Assessment

Not upheld

The ASA was concerned to hear of the complainant's experience and sympathised with her point of view.  We considered that it was unreasonable for advertising to pose an unacceptable level of risk and noted provision had been made in the Code to prevent the broadcast of material that was likely to be detrimental to the health and safety of viewers.

We understood that, on this occasion, the ad had passed the Harding FPA test.  We also noted Ofcom's opinion that, while they acknowledged the ad was complex and difficult to analyse manually, it contained no clear breach of the guidelines for flashing imagery.

We approached Ofcom and Harding test experts for help in establishing the meaning of the 'caution' element of the ad's 'pass' certificate.  We understood from them that the 'caution' referred to the small degree of uncertainty that could exist when making assessments of material in an analogue format and was advisory in that context only; it did not refer to any content risks.  We also understood that it advised users of the Harding device that, within an analogue signal, there could be 'noise' or interference present and results might differ if the material was re-analysed. We were therefore satisfied that, although the ad had passed the Harding test with 'caution', it should not be inferred that it posed a potential risk to viewers in that regard.  We also noted that measurement uncertainties associated with analogue signals were not present when assessments were made of the material in a digital format.

We also understood that, in some cases, if the subject was particularly vulnerable, photosensitive epilepsy could be triggered by broadcast content that had incontestably conformed to guidelines and that the guidelines and the testing provisions in place could not altogether remove the risk of a seizure through photosensitivity for all viewers. Although the Ofcom Guidance Note was drawn up with the aim of reducing risk to viewers, the 'flickering' nature of all television pictures meant that it was impossible to entirely eliminate the risk of television causing seizures in viewers with photosensitive epilepsy.

We noted Ofcom's advice that some sequences of flashing images that lasted for more than five seconds could constitute a risk despite their otherwise compliance.  Although we considered that advertisers should exercise caution when considering incorporating prolonged sequences of flashing effects into their marketing, we acknowledged that this ad had been tested for extended flashing and had not failed; we understood that no flashing sequence in the ad lasted for longer than about one second.  In view of the fact that it had passed the Harding test and, through manual analysis, no breach of the guidelines was discernible, we considered that it was not inappropriate for the ad to be broadcast.   

We investigated the ad under CAP (Broadcast) TV Advertising Standards Code rule 6.7 (Health and safety) but did not find it in breach.

Action

No action necessary.

Adjudication of the ASA Council (Broadcast)