Background
Four issues were investigated of which two were Upheld and two were Not Upheld.
Ad description
Press ads for an airline, seen in the Daily Express on 24 November (a), in the Oldham Evening Chronicle on 25 November (b) and in Scotland on Sunday on 27 November (c), were headed "BYE BYE THOMAS COOK". Extracts of news stories were included, which stated "'Thomas Cook in dire straits...' and '... accumulated debts of nearly £1 billion' Source: www.dailymail.co.uk 22 Nov 2011". Further text stated "BOOK RYANAIR. OVER 3 BILLION IN CASH RESERVES".
Ad (a) also stated "RYANAIR - GUARANTEED TO KEEP FLYING THIS CHRISTMAS".
Ads (b) and (c) also stated "WE'RE FINANCIALLY SECURE" and "RYANAIR - GUARANTEED TO KEEP FLYING".
Issue
The ASA received fifteen complaints:
1. Seven complainants objected that the ads were offensive because they believed they mocked the financial difficulties of Thomas Cook.
2. Seven complainants objected that the ads were likely to cause fear or distress to customers and employees of Thomas Cook.
3. Seven complainants objected that the ads denigrated Thomas Cook, as they believed they falsely implied that Thomas Cook was likely to go into administration and that it was risky to book with them.
4. Three complainants, who believed ad (a) implied Thomas Cook would have ceased trading by Christmas 2011, challenged whether the ad was misleading.
Response
1. Ryanair Ltd (Ryanair) said the ads did not mock Thomas Cook's financial difficulties. They said these were simply referred to using already published newspaper headlines. They said the ad drew consumers' attention to Ryanair's financial security, as opposed to Thomas Cook's financial problems.
2. Ryanair did not believe their ads were likely to cause fear or distress to customers or employees of Thomas Cook as their financial difficulties had already been widely reported.
3. Ryanair said their ads did not denigrate Thomas Cook, as they only reproduced newspaper headlines which had already been published. They believed it was factually accurate that the financial difficulties of Thomas Cook had given rise to considerable public commentary about the possibility of them going into administration and whether it was risky to book with them.
4. Ryanair did not believe ad (a) implied that Thomas Cook would have ceased trading by Christmas 2011. They said the ad merely contained newspaper headlines that had already been published, and so was not misleading. They also said the claim "RYANAIR - GUARANTEED TO KEEP FLYING THIS CHRISTMAS" was factually accurate and the claim merely aimed to communicate this.
The Daily Express said the ad was missed by their checking system as it was submitted very late. They said they removed the ad as soon as they became aware of its content, and that they informed the ad agency that they would not run the ad again. They said they had not received any reader complaints about the ad.
The Oldham Evening Chronicle said they published the ad in good faith, and that they did not intend to run it again. They said they had checks in place to ensure they did not publish inappropriate ads, and they had not received any reader complaints about it.
Scotland on Sunday said they took legal advice before publishing the ad, and that as a result of this they made the decision that the ad was suitable for publication. They said they had not received any reader complaints about the ad.
Assessment
1. Not upheld
The ASA noted that the ads were headed "BYE BYE THOMAS COOK" and considered that this could be seen as mocking the financial difficulties of the company. However, although we considered that some might find the ad distasteful, we concluded that the ads did not contain anything that was likely to cause serious or widespread offence.
On this point we considered ads (a), (b) and (c) under CAP Code (Edition 12) rule
4.1
4.1
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) but did not find them in breach.
2. Not upheld
We noted that the complainants believed that the ads were likely to cause fear or distress to customers or employees of Thomas Cook. We also noted there had been widespread media coverage of the financial difficulties of Thomas Cook, and that customers and employees were likely to be aware of this. We acknowledged that the header "BYE BYE THOMAS COOK" and the newspaper headline could have added to customers' concerns about their holidays, or employees' concerns about their jobs. However, in the context of ads for a competing airline, we considered that while some may find at the ads distasteful, the content was unlikely to cause fear or distress.
On this point we considered ads (a), (b) and (c) under CAP Code (Edition 12) rule 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence) but did not find them in breach.
3. Upheld
We noted that Ryanair did not believe the ads denigrated Thomas Cook as they only reproduced factual information and newspaper headlines that had already been published. We acknowledged that the newspaper headlines used in the ad were genuine. We also acknowledged there had been widespread media coverage of the financial difficulties of Thomas Cook and that the average consumer viewing the ads was likely to be aware of this. However, we considered that the header "BYE BYE THOMAS COOK" pictured alongside the newspaper headlines would lead consumers to believe that Thomas Cook was likely to go into administration and that it was risky to book with them. As a result we concluded that the ads were misleading and denigratory.
On this point ads (a), (b) and (c) breached CAP Code (Edition 12) rules 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsibility), 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors) and 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and denigration).
4. Upheld
We noted that Ryanair did not believe ad (a) implied Thomas Cook would have ceased trading by Christmas 2011 as it only reproduced factual information and newspaper headlines that had already been published. We acknowledged there had been widespread media coverage of the financial difficulties of Thomas Cook and that the average consumer viewing the ad was likely to be aware of this. However, we considered that the header "BYE BYE THOMAS COOK" pictured alongside the newspaper headlines and the text "RYANAIR - GUARANTEED TO KEEP FLYING THIS CHRISTMAS" implied that Thomas Cook would cease trading by Christmas 2011. As this was not the case, we concluded that ad (a) was misleading.
On this point ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Misleading advertising) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
Action
The ads must not appear again in their current form.
