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.
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 should be aware of the potential to cause serious or widespread offence when referring to different races, cultures, nationalities or ethnic groups. Light-hearted ads might be acceptable but even mild humour revolving around racial stereotypes has the potential to seriously offend. Marketers should therefore consider carefully the likely acceptability of their intended approach.
The tone of the marketing communication is extremely important: using negative racial stereotypes, or aggressive, confrontational or mocking approaches are likely to cause serious or widespread offence. In 2016, a complaint about a press ad which featured an illustration of a character referred to in the ad as a ‘golly’ holding a pint of ginger beer with text underneath stating “ENGLISH FREEDOM” was upheld. The ASA considered that people were likely to view the character as representing negative racial stereotypes, and its prominent inclusion in a press ad was likely to cause serious or widespread offence. They also considered that the inclusion of the words “ENGLISH FREEDOM” in the ad was likely to contribute to that offence, because in combination with the image it could be read as a negative reference to immigration or race (Ginger Pop Ltd 21 September 2016).
Whilst the ASA appreciates that in many circumstances it is not the advertiser’s intention to offend, the ASA will consider how viewers will interpret the ad, rather than the advertisers intention. In 2017 a complaint about an ad which featured Floyd Mayweather and stated “always bet on black” was upheld because, whilst the advertiser felt that the ad was humorous and stated that Floyd Mayweather approved the ad, the ASA considered that readers would nevertheless be offended by the invitation to always bet on the outcome of a boxing match based on a boxer’s race, and the message that the boxing match was a fight between two different races. (Paddy Power, 20 September 2017).
Light hearted depictions may sometimes be acceptable, however humour itself does not prevent an ad from being likely to cause offence and advertisers should take care that humour is not based on racial stereotypes. A radio ad was upheld by the ASA for using a characters accent in an ad in a way which was likely to cause offence. The ad featured a character buying a kitchen, who stated "Surplised" before he corrected himself and said "I mean surprised". The ASA considered that whilst the ad was intended to be an ironic use of humour, the humour was derived from the ethnicity of the character, and concluded that was likely to cause serious offence to some people and be seen as discriminatory (Brunel Supplies, 07 August 2013).
Whether or not an ad is considered offensive on the grounds of race will depend on the context. A complainant challenged whether an ad for Twining teas portrayed a negative racial stereotype of a black man as sexually promiscuous and there to provide sexual services for white women. The ASA did not uphold this complaint as although it acknowledged the innuendo featured was mildly sexual, it did not consider that this was reliant on the young man’s ethnic origins or a racial stereotype and as such was not considered offensive on the grounds of race (R Twining, 26th March 2008).
Generalisations that do not mention specific nationalities or racial groups can offend. The ASA upheld complaints about a business fax that was headlined “Asylum Seekers” and stated “Are the French Authorities doing enough to stop the 200,000 illegals entering the UK every year …?” It considered that, because the figures were unsubstantiated, the fax implied all asylum seekers were illegal and was likely to be interpreted as racist (21st Century Faxes Ltd, 16 January 2002). However, the ASA did not uphold a Home Office ad that stated "In the UK illegally?...GO HOME OR FACE ARREST". Complainants objected that the poster, and in particular the phrase "GO HOME", was offensive and distressing, because it was reminiscent of slogans used by racist groups to attack immigrants in the past. The ASA did not uphold the complaints, considering that in context, the claim would be interpreted as a message regarding the immigration status of those in the country illegally, which was not related to their race or ethnicity (Home Office, 9 October 2013).
Marketers should remember that society’s tolerance changes over time and can sometimes be influenced by events outside their control, such as current affairs.