An e-mail, for a clothing company, stated "Trick or Treat - Dirty Smart Style" in the subject line. The body of the e-mail was headed "TRICK OR TREAT?". Text stated "Hello young raver, It's Halloween and things are getting a little bit spooky ... Trick or Treat DIRTYSMART style! Below you will find 2 pictures ... One of the pictures will send you to a page displaying a vouchercode for 50% off all items! The other picture will double the price of everything!". Under the heading "CHOOSE YOUR FATE (CLICK ONE)", arrows pointed to a cartoon image of a Halloween pumpkin and a cartoon image of Jimmy Savile.
The complainant challenged whether the ad was offensive and irresponsible, because it made light of allegations of sexual abuse made against Jimmy Savile.
DirtySmart said the e-mail did not make light of allegations of sexual abuse made against Jimmy Savile, and there was no reference to ongoing investigations. They said they had not intended to cause offence, and were simply using a topical image. The opening line "Hello young raver" was the opening line used in all of their newsletters. They added that their database was opt-in and opt-out, so users were free to unsubscribe at any point. They acknowledged that some people may have found the cartoon image of Jimmy Savile distasteful, but they considered it would not cause serious or widespread offence.
The ASA acknowledged that advertisers were entitled to refer to current news stories, but noted the need for particular care in how such stories were used, especially those involving allegations about the sexual abuse of children, to avoid accusations of exploitation in order to sell products or services. Whilst the e-mail did not directly refer to the allegations against Jimmy Savile, we considered it was clear that his image had been used because of the ongoing public awareness about those allegations. In that context, we considered the statement "CHOOSE YOUR FATE" with a choice between clicking on the image of a Halloween pumpkin or Jimmy Savile as a "Trick or Treat" was likely to be seen as insensitive by recipients and was likely to cause serious offence to some. We concluded the ad breached the Code.
The ad breached CAP Code (Edition 12) rules
Marketing communications must be prepared with a sense of responsibility to consumers and to society.
(Responsible advertising) and
Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age. Compliance will be judged on the context, medium, audience, product and prevailing standards.
Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material.
The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code. (Harm and offence).
The ad must not appear again in its current form. We told DirtySmart to ensure they prepared their ads with a sense of responsibility to consumers and to society, and to ensure they did not cause serious or widespread offence.