Two in-game pop-up ads, seen between 6 and 9 August 2015 in the app 'My Talking Tom', promoted Affairalert.com:
a. The first ad included a selfie of a naked woman sitting in front of a mirror. The photo had been cropped to just show her torso. Her breasts were exposed but her crotch was concealed by her hand. The words "Wanna fuck?" were written in lipstick on the mirror. Text above the image stated "Want to fuck her?" and the options "YES", "MAYBE" and "NO" were stated below.
b. The ad included a selfie of a naked woman standing in front of a mirror, in profile. The photo was cropped so her face wasn't visible, but her breasts were exposed. Text above the image stated "Want to fuck her?" and the options "YES", "MAYBE" and "NO", were stated below.
Two complainants, whose seven- and three-year-old children had been using the app at the time the ads appeared, challenged whether the ads had been inappropriately and irresponsibly placed within a game that was likely to be played by children.
Plymouth Associates Ltd said they had no role in placing or commissioning any ad in, or with, the “My Talking Tom” app. They believed that a third party, without their knowledge or consent, might have found a temporary means of exploiting the app by inserting malicious ad code. Without the link code, they were unable to determine the third party responsible for the insertion of the ad code. They said they had an affiliate program which required affiliates to commit to strict terms, including a prohibition on the placement of links in inappropriate areas, such as web pages aimed at, or intended for, persons under 18 years of age. The terms also made clear that if an affiliate violated them, they would be removed from the program. They maintained, however, that the ad was not likely to have been placed by an affiliate and they suspected that it had instead been placed by a third party seeking to damage Plymouth Associates' reputation. They said they took their social responsibilities seriously and would never permit an ad with adult themed content to appear in a place where children could view it, and would never do so in connection with an app that would appeal to children.
Outfit7 Ltd, who operated the “My Talking Tom” app, said although their apps were not directed at children, they strove to be family friendly and had a number of advertising restrictions in place, which formed part of their agreements with ad partners. Those restrictions defined what content was prohibited from being displayed in their apps and any breach could result in an immediate termination of the agreement with an advertiser. They said they worked with their ad partner networks to categorise ads according to their content and ensure inappropriate ads were filtered out, including all porn-related ads. However, despite their best efforts and the implementation of a strict procedure to prohibit the display of inappropriate ads, it was impossible to eliminate the risk altogether. Technical malfunctions and human error or miscategorising ads remained possible. Given the safeguards they had implemented, however, they felt their apps were responsible. In relation to the ads in question, they said they had contacted all their ad networks but were unable to establish which network was responsible. The issue, however had not arisen again.
The ASA noted that Plymouth Associates denied placing the ads in the app and believed they had been produced and placed by a malicious third party as opposed to an affiliate, but were unable to identify who was responsible. Nonetheless, they had not provided any evidence to confirm that that was the case. Given that the ads promoted Affairalert.com and they were the sole beneficiaries, we considered that Plymouth Associates were responsible for the material and for ensuring that it was compliant with the Code.
We considered that the sexually explicit content of the ads and the product they promoted meant that they should not appear in media which might be seen by children. We considered that the “My Talking Tom” app, in which the ads had appeared, would be of particular appeal to children. We acknowledged that Plymouth Associates had procedures in place that were intended to prevent their ads appearing in apps or websites that could appeal to, or were targeted at under 18s. We were concerned, however, that their procedures had not been adequate to ensure their ads only appeared in appropriate mediums. Therefore, we concluded that the ads had been irresponsibly placed and breached the Code.
The ads breached CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Social responsibility).
We told Plymouth Associates Ltd to ensure their ads were targeted appropriately and did not appear in apps that were played by children in future.