ASA Ruling on The Random House Group Ltd in association with Channel 5 Broadcasting Ltd & Tesco Stores Ltd
The Random House Group Ltd
Random House
20 Vauxhall Bridge Road
London
SW1V 2SA
Date:
23 October 2013
Media:
Television, VOD
Sector:
Retail
Number of complaints:
2
Agency:
Picture Production Company
Complaint Ref:
A13-235262
Background
Summary of Council decision:
Two issues were investigated, one was Upheld and one was Not upheld.
Ad
A TV and video-on-demand (VOD) ad, for the novel Criminal by Karin Slaughter:
a. The TV ad, which appeared at 9.45 pm during Body of Proof on 5USA, began with the on-screen text "NEW FROM KARIN SLAUGHTER". A young woman was shown running in heels down a dark street and repeatedly looking over her shoulder. A male voice-over stated, "You cannot escape me. I have chosen you …" The woman was then shown apparently being held to the ground, with a man's face to the back of her head. The voice-over continued, "And tonight, you will pay for your sins." A female voice-over stated, "Criminal, the most chilling novel yet from Karin Slaughter."
b. An ad with the same content appeared during Neighbours on the Demand 5 VOD service.
Issue
1. Two viewers challenged whether the ad was likely to cause serious or widespread offence, and cause fear and distress without justifiable reason, because it depicted a woman in distress.
2. One of the viewers also challenged whether ad (b) was inappropriately scheduled during a family show.
CAP Code (Edition 12)
BCAP Code
Response
1. & 2. The Random House Group Ltd (Random House) said they did not intend to use the ad in future. They said the woman was shown running, but not actually being chased. While there was a close up of her face and the outline of a man's nose, the man and woman were not seen in the same full frame together. They said the woman's face was seen only very briefly and only in flashes, or when it was shaded. They said it was clear from the voice-over that the ad related to a novel and therefore did not depict real events. Random House said the ad was deliberately targeted to a defined crime/thriller audience. All of the TV ads appeared after 9 pm and most were in thriller programming that was shown at 10 or 11 pm, including CSI: Body of Proof. Such entertainment programmes featured scenes of crime and tense or perilous situations. They believed the ad, which was prepared with a sense of responsibility, would not therefore cause serious or widespread offence, or cause fear and distress without justifiable reason.
They said both ads were considered by Clearcast and they were supplied to the broadcaster in accordance with the clearance instructions. When the VOD ad was supplied, it was marked to be shown after 9 pm and it was intended to also be shown with crime/thriller content. In addition, Random House said it was a condition of their booking that viewers of the programmes in which the VOD ad appeared would need to confirm they were over 18 before they could view the content. They provided a copy of the instructions that were submitted with the VOD ad and said they were unaware of the changes in scheduling until after the campaign. Random House emphasised that they had used all means available to them to ensure the ad was scheduled appropriately and had in place extensive checks and clearance processes. They said they had no reason to believe the ad would appear with content that would be broadcast on TV before 9 pm.
Tesco Stores Ltd (Tesco) said the ad was created by Random House and Tesco had no creative input into it. In addition, they were only one of many retailers that sold the book. Nevertheless, they said the ad was short and the character was seen only briefly. She was not shown coming to any harm and the on-screen text was prominent, and present for the duration of the ad, which made clear the ad was for a product and detracted from any sense of realism. They said that CSI: Body of Proof, during which ad (a) was shown, related to violent crime and regularly included content that was more distressing than anything seen in the ad. They therefore believed the ad would not cause serious or widespread offence to its viewers. Tesco said they believed the implication of the post-9 pm timing restriction was that ad (b), which appeared in VOD content that could be viewed at any time, should also not have been placed with programming that would have been broadcast before 9 pm on TV. They believed the ad was not likely to cause serious or widespread offence, or cause fear or distress without good reason, if it appeared in the context of post-9 pm programming.
Clearcast said they gave the TV ad a post-9 pm timing restriction to ensure its audience would be adults, who would recognise it as an ad. They believed the scenes were similar to those viewed in film trailers and therefore it would not be shocking or cause fear and distress to the audience, or cause offence. They took account of the fact the ad was only 20 seconds long and believed the end frame cut the suspense quickly, and immediately made it clear the ad was for a fictional book, rather than a genuine portrayal. Clearcast said the ad also did not show any violence, blood or any other graphic scenes. They understood the nature of the ad might be upsetting for some viewers but believed that would not be widespread. They said the VOD ad was given an 'L3H' advisory restriction. Clearcast said the wording on their system would be changed to ensure that was clear in all circumstances.
Channel 5 said Clearcast acted only in an advisory capacity for VOD ads and suggested restrictions that on demand service providers might adopt. The advisory restrictions did not have the same status as those Clearcast applied to linear programming. They agreed that ads in programmes that were directed at or of particular appeal to children should be restricted in a similar way to programmes on a linear service. However, Neighbours was not of particular appeal to children and was watched by a relatively small proportion of children. They said it was the nature of VOD services that programmes could be viewed at any time. So a programme that would be broadcast after 9 pm on TV could be viewed before 9 pm on a VOD service. Or, a programme that had appeared before 9 pm on TV might be viewed after that time on a VOD service. They emphasised that it was not known whether the complainants viewed the ad before 9 pm. They said that, while the advertiser bore primary responsibility for the compliance of VOD ads, they took seriously their own responsibilities to schedule ads on VOD services appropriately and would keep their practices under review.
Assessment
1. Not upheld
The ASA acknowledged the ads, which we considered included tense scenes that suggested a woman was being pursued by an attacker, might be distasteful to some viewers. We noted the ads were given a post-9 pm timing restriction, which we considered was appropriate given that viewers would understand programming that appeared after then might, for example, include violence. We noted, however, that no violent or otherwise graphic scenes were shown and considered viewers would understand that the ads reflected the content of a crime novel. We considered if the ads were shown after 9 pm, they were not likely to cause serious or widespread offence or cause fear and distress without justifiable reason.
On this point, we investigated the ads under CAP Code (Edition 12) rules 1.3 (Responsible advertising) and 4.1 and 4.2 (Harm and offence) and BCAP Code rules 1.2 (Responsible advertising) and 4.1 (Harm and offence) but did not find them in breach.
2. Upheld
We noted ad (b) was given an ‘L3H’ restriction by Clearcast, which their website stated was “to be transmitted post 2100 … Not suitable for pre-watershed”. While we acknowledged that restriction was advisory only, and that the advice on Clearcast’s website also related to TV ads, we noted that indicated the content of the ad to be such that it was considered suitable to appear only with programmes that would be broadcast after 9 pm on TV. We considered the advisory restriction was appropriate, but that the content of the ad, which included tense scenes that suggested a woman was being pursued by an attacker, was such that it was not suitable to be shown with content that appeared before 9 pm on TV, such as Neighbours. Because the ad appeared on Channel 5’s VOD service with a programme we understood would have been broadcast before 9 pm on TV, we concluded that it was inappropriately scheduled and therefore breached the Code.
On this point, the scheduling of ad (b) breached CAP Code rules 4.1 and 4.2 (Harm and offence).
Action
Ad (b), in its current form, must not be scheduled to appear on VOD services again with programming that would appear before 9 pm on TV. We told Channel 5 to take more care when scheduling ads in future.