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.
Although they only account for a small part of the ASA’s work, complaints about taste and decency are often the most high profile. Upheld decisions can result in widespread adverse publicity for the company concerned and marketers can be required to have posters pre-vetted by CAP’s Copy Advice team for two years if they publish an offensive poster.
Rule 4.1 states that marketing communications must not contain anything that is likely to cause serious or widespread offence, and specifies that special care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability and age. Marketers referencing or depicting any of these characteristics in their ads should read CAP’s specific guidance on these; Offence: Sexual orientation and gender identity, Offence: Sex, Offence: Elderly, Offence: Racism, Offence: Disability, Offence: Religion and belief.
Complaints have also been upheld on the grounds of ads causing offence due to their depiction of stereotypes, Sexualisation or objectification, depiction of death, the use of language and depiction of nudity.
Compliance with this rule is judged based on the context, medium, audience, product and prevailing standards.
Marketers who wish to refer to current or emotive news stories in their marketing should take particular care over how such stories are used, if they are to avoid accusations of exploitation or shock tactics.
An ad which appeared around the time of the trial of South African Olympic and Paralympic athlete Oscar Pistorius for the alleged premeditated murder of his girlfriend Reeva Steenkamp stated “IT’S OSCAR TIME”, “MONEY BACK IF HE WALKS” and “WE WILL REFUND ALL LOSING BETS ON THE OSCAR PISTORIUS TRIAL IF HE IS FOUND NOT GUILTY”. The ASA felt that the ad was likely to be interpreted as making light of the issues surrounding the trial, which included the death of a woman, and the encouragement to bet on the outcome was also likely to be seen as making light of the serious decision making process involved in that trial and as such was likely to cause offence. (Paddy Power plc, 19 March 2014).
Medium and audience
When determining whether an ad is likely to cause serious or widespread offence, the ASA will take into account the medium in which the ad has appeared. What is acceptable in magazines with a relevant audience might not be acceptable on posters that are untargeted. Marketers can go some way towards avoiding causing serious or widespread offence by ensuring that they target ads appropriately.
A trailer for a film which featured graphic violence and gore was shown in-stream during a Twitch broadcast of the League of Legends World Championships. In this case the ASA understood that not all League of Legends viewers would play or view games with graphic violence or gore and considered that, unless they had previously viewed or sought out content of this type, users would not expect to come across material that was significantly stronger than the stream they had selected to watch. They therefore considered that, because there was a significant difference between the type of material in the ad compared to the surrounding gameplay content, the ad was likely to cause offence and distress and should only have been targeted to users whose previous activity indicated they were comfortable with viewing such content (Lions Gate International (UK) Ltd, 27 January 2016).
Marketers should be mindful that, although careful targeting can help to avoid causing offence, some ads are unlikely to be acceptable in any media.
ProductRule 4.1 recognises that some people might be offended by the product being advertised, irrespective of the nature of the ad itself. Whilst ads for some products, such as adult services, condoms and erotic literature will be likely to generate complaints, the Code allows for legal products to be advertised and will consider whether the content of the ad breaches the Code. In 2012 the ASA held that whilst some consumers would find posters for condoms distasteful because of the references to sex and sexual activity, the ads were unlikely to cause serious or widespread offence, because the images used were not sexually explicit and the overall tone of the ads was not provocative (Ansell (U.K.) Ltd, 2 May 2012).
The ASA has tended to allow charities a little more leeway than commercial companies when using material which might otherwise be considered offensive, in order to publicise their cause. In 2012, the ASA held that a reference to child abuse in a mailing had been adequately balanced by the worthwhile purpose of raising awareness of it (National Society For The Prevention of Cruelty to Children, 21 March 2012).
It can be difficult to know in advance whether an ad is likely to cause serious or widespread offence, but CAP’s Copy Advice team are always happy to provide advice on whether an ad is likely to breach the Code.