Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The central principle of the CAP Code is that all marketing communications should be legal, decent, honest and truthful, which is considered to be of benefit both to consumers and the advertising industry itself. In keeping with this principle, rule 1.5 of the CAP Code states that no marketing communication should bring advertising into disrepute. In practice it appears that the ASA will only apply this rule in exceptional circumstances.
In 2014, the ASA held that an ad which encouraged consumers to bet on the outcome of an ongoing murder trial had breached this rule because it was reasonably foreseeable that serious or widespread offence was likely to be caused by an ad which sought commercial advantage based on that trial and which made light of the sensitive issues involved (Paddy Power plc, 19 March 2014).
Previously, the ASA held that a poster which had been displayed where it could be seen by children and which contained the text "fcukinkybugger.com” was likely to cause serious or widespread offence, because it would be interpreted by consumers as referring to an expletive. In this case, the advertiser had previously been told "fcuk" should not be used in an advertisement if it could be interpreted in this way, and the ASA held that the ad hadn’t just been likely to cause offence, but had also brought advertising into disrepute (French Connection Group plc, 4 April 2001).
In 2006, the ASA held that an ad which misleadingly described flights as “free” when consumers had to pay non-optional taxes had brought advertising into disrepute. In this case, the ASA had previously told the advertiser it was misleading to describe the flights as “free” and they had provided a number of written assurances that they would not repeat the claim (Dart Group plc t/a Jet2.com, 20 December 2006). Because the advertiser had subsequently breached those assurances, the ASA held that the ads had brought advertising into disrepute.
It appears that in circumstances where the ASA considers it should have been foreseeable to a marketer that publishing an ad would amount to a serious breach of the Code, either due to the sensitive nature of the subject matter and the circumstances in which it appears, or because the marketer has breached assurances to the ASA that the copy in question will not be used again, then it may hold that that ad has brought advertising into disrepute.
Due to the exceptional nature of a breach of this rule, the ASA and CAP may require marketers who breach it to have their ads vetted by CAP’s Copy Advice team prior to publication.