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.
Marketing communications featuring gratuitous use of nudity can cause serious or widespread offence but marketers will find the public is generally more tolerant of it if the nudity is relevant to the advertised product; lingerie and beauty products are good examples for which nudity can generally be used without offending (H&M Hennes & Mauritz UK Ltd, 4 April 2012; Calvin Klein, 18 January 2012 and Tom Ford Beauty, 19 December 2007). However, trying to make nudity relevant by, for example, using puns or sexual innuendo is unlikely to render the ad acceptable. One advertiser used an image of a naked woman with an "ACCESS DENIED" sign across her bottom to convey the seriousness of phone system hacking. Despite the image itself not being considered explicit, the ASA noted that nudity and sex had no relevance to the product being advertised and concluded that the allusion to anal sex was likely to offend (Retell Ltd, 7 April 2010).
In 2007, the ASA acknowledged that readers of a magazine featuring images of people displaying body art would expect to see a certain amount of nudity in that context. But it considered that an ad showing a naked woman from behind in a fairly explicit pose, together with the text "get it how you want it", was likely to seriously offend some readers of the magazine (Chrisfuckinjones.com, 31 October 2007).
Marketers should be aware that advertising products for which nakedness might be justified does not mean they have an absolute freedom to depict nudity or that their marcoms will not generate complaints. For example, in 2010 the ASA upheld complaints that a perfume ad, that did not feature explicit nudity, was nevertheless sexually provocative and was unsuitable to be seen by young children (Coty UK Ltd, 17 November 2010). The ASA also ruled against a poster, for a nude lap dancing club in Brighton, that depicted a woman kneeling over a foaming bottle of champagne (Grace of Brighton, 6 February 2008) and again for a lap dancing club in London, the poster for which featured a woman’s lower half with her underwear pulled down around her thighs (Club Spice Ltd t/a Club Oops, 4 August 2010). In 2003 the ASA received, but rejected, nearly 400 complaints about a toilet tissue poster that showed photos of naked bottoms. It considered the nudity relevant and unprovocative. But, if an ad combines nudity with innuendo, the ASA has tended to take a harsher line (Balloo hire Centre Ltd, 22 November 2006, and The Gas Showroom Ltd, 30 August 2006).
As ever, the choice of medium is important; marketers can try and avoid causing serious or widespread offence by ensuring that they use a medium suitable to reach the target audience. For example, visuals that are unsuitable for relatively untargeted media such as posters can often be acceptable in more targeted media. Advertisers should be aware however that explicit nudity, particularly if it is also sexually provocative, is rarely considered acceptable unless the ad is very specifically targeted. In 2012, the ASA upheld a complaint about a website that featured images of women in various states of undress and in various positions, some lying or sitting on beds with their legs apart or revealing buttocks or breasts. It accepted as plausible, the advertiser’s argument that the images were aimed at young, adult women who were likely to be unoffended by the images. The ASA concluded, however, that where those ads were likely to be seen by a wider audience (for example on the home page), the images were likely to cause serious or widespread offence (American Apparel, 4 April 2012).
Ads that feature a degree of nudity that is neither explicit nor sexualised are less likely to be considered problematic even in untargeted media (The Ambassador Theatre Group, 22 February 2012). Marketers are nevertheless urged to be mindful of local sensitivities when featuring nudity or potentially provocative images; posters that appear close to schools or places of worship risk offending the likely audience. See ‘Taste and Decency: Religion’.
Marketers should bear in mind that they could be made to pre-vet their posters for two years if they use a poster found to be offensive.