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.
CAP Code rule 4.1 states that marketing communications must not contain anything that is likely to cause serious or widespread offence. And particular care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age.
Ads which mock characters based on their sexual orientation or gender identity, or which use stereotypes in a way which may demean or ridicule groups or individuals, are likely to be considered offensive or harmful (see offence: use of stereotypes). In 2012 the ASA upheld a TV ad for Paddy Power which stated “we’re going to make Ladies day even more exciting by sending in some beautiful transgendered ladies! Spot the stallions from the mares!”, and featured brief shots of people at the event while the voiceover attempted to guess their gender. The ASA considered that the ad trivialised a complex issue and depicted a number of common negative stereotypes, caused serious offence, and condoned and encouraged harmful discriminatory behaviour. (Paddy Power, 16 May 2012).
Whether an ad is considered likely to cause offence will depend on the tone and execution of the ad. In 2013 the ASA received two complaints about a TV ad for pot noodle which depicted a male actor playing the character of a WAG, dressed in women’s clothing. The complainants challenged whether the ad was offensive, and whether the ad encouraged discriminatory behaviour and treatment towards transsexual people. The ASA considered that this ad was likely to be interpreted as a mockery of the WAG culture, rather than of transsexual people, and that it was unlikely to cause serious or widespread offence. (Unilever UK Ltd, 02 October 2013).
The ASA sometimes receives complaints about ads which depict or imply homosexuality because a complainant believes that depictions of homosexuality in themselves are offensive. The ASA will not uphold if a complainant finds an ad offensive purely for depicting homosexuality. In 2013, the ASA received complaints about posters which depicted a woman kissing her reflection in the mirror because these complainants felt that the poster depicted a lesbian kiss, which they found offensive. Whilst the ASA felt that the ad made it clear that the woman was kissing her own reflection, they considered that had a reference to homosexuality been made in the ad this would not in itself cause widespread or serious offence or constitute irresponsible advertising, and did not feel that they were unsuitable for untargeted display. (Harvey Nichols Group Ltd 27 February 2013). When depicting people in physical intimacy, such as kissing, advertisers must take care to ensure this is not explicitly sexual (see offence: sex).