A promotional e-mail, from Spotify, an online music service, included the text "Have you heard this song by Lily Allen? Give it a try. Fuck You".
The complainant challenged whether the use of a swear word in the ad was likely to cause serious or widespread offence.
Spotify said they did not intend to cause offence to their users or to the wider public. While they acknowledged that "Fuck" had the potential to cause offence, they believed the ad did not breach the Code. They said the e-mail was intended to recommend songs to a user, one of which was titled "Fuck You". They said the song, which was named by the artist, not Spotify, was not chosen to shock consumers or to drive traffic to their website by being controversial. They believed there was a clear difference between deliberate language use such as that and the context in which it was used in the ad. Spotify said while it was not ideal that the title of the song appeared at the top of the ad, it appeared alongside nine other recommendations and therefore the language was clearly used in context. They said users under 18 years of age had to have the consent of a parent or guardian to join and those under 13 years were not allowed to sign up at all. Spotify said their advertising, which users had to agree to receive, was therefore targeted and they believed that limited the potential for it to cause offence to its users.
Spotify said songs were recommended based on an algorithm, which took into account a user's listening history. That meant the user was likely to have listened to music of a similar genre to the songs recommended in the e-mail or to music that other Spotify users who liked Lily Allen's music had also listened to. They said the recommendation was very unlikely to have been sent to a user who had only ever listened to music targeted at young teens or children and therefore it was also unlikely to have been sent to users that might be more sensitive to the language used. They said it was unlikely it would have been seen by many young children. Spotify said around 36 million recommendations were sent to users by e-mail every month and therefore over the years a significant proportion of its users would have had the same song recommended to them. However, they had not received any other complaints. They believed the ad was not likely to cause serious or widespread offence.
The ASA noted the expletive used in the ad reflected the title of a song, which we understood was recommended to users, for example, based on a user having listened to songs of a similar genre, rather than of a similar title. While we considered Spotify users would understand the use of "Fuck You" to be the title of a song, we considered recipients of e-mails from a general online music service would not expect them to include swearing. We considered the use of "Fuck" was likely to cause serious offence to some recipients of such e-mails and therefore concluded that the ad breached the Code.
The ad breached CAP Code (Edition 12) rule
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 Spotify to ensure their future advertising contained nothing that was likely to cause serious or widespread offence.