Summary of Council decision :
Two issues were investigated, both of which were Upheld.
An embedded paid-for ad in a YouTube video on the TomSka & Friends YouTube channel for Surfshark’s Virtual Private Network (VPN) service, seen on 31 August 2022. The ad commenced with a voiceover stating, “BUT FIRST A WORD FROM OUR SPONSOR”, and featured a sketch by two of the show’s presenters, ‘TomSka’ and ‘Eddie’, on the subject of Surfshark’s VPN. The sketch began with a joke referring to a plastic doll and then featured a conversation in which one presenter, TomSka, became increasingly frustrated which resulted in him smashing a glass over the head of the other presenter, who was then shown with a blood-like substance on his face and whimpering. The conversation continued with TomSka becoming angry again and screaming in Eddie’s face. The video abruptly cut to a static screen and sound, and then showed TomSka with a substance that represented blood on his face, hands and shirt, and sat alongside an empty chair with the sound of flies. TomSka looked down at the floor and briefly appeared concerned, before he laughed and said, “Now back to the show”.
Additionally, the YouTube video in which the ad appeared, an episode of the comedy series ‘TryHards’, titled “Last One to Leave their Garden Wins”, began with an on-screen text disclaimer appearing for two seconds. It stated, “SUGGESTED AGE RATING 12+”, and featured a list including “STRONG LANGUAGE”, “BLOOD AND VIOLENCE”, “RECKLESS IMITABLE BEHAVIOUR”, and stated “THE FOLLOWING IS NOT SUITABLE FOR CHILDREN”.
The complainant, who believed the ad was excessively violent, challenged whether it:
1. caused unjustifiable distress and was irresponsible; and
2. had been irresponsibly targeted.
1. & 2. Surfshark B.V. said that they had contacted the relevant agency they worked with in relation to content creators such as Turbopunch Ltd, who had assured them that the ad had been prepared with a sense of responsibility to consumers and to society. They also said the ad did not cause fear or distress as it was designated for and viewed only by adults who could understood the cinematic and satirical presentation of the film. They highlighted that the video was viewed more than 409,000 times yet only one complaint was raised, which showed that the critical majority of viewers were not offended by the humorous content of the ad.
Surfshark B.V. said that a clear disclaimer appeared at the beginning of the video, warning of “strong language”, “blood and violence”, “discussion of bodily functions” and “reckless imitable behaviour”. It also stated “the following video is not intended for children”, and it featured a suggested age rating of “12+”. They said the official 12+ rating by the British Board of Film Classification (BBFC) allowed the possibility for creators to use threat and horror, stating, “There may be moderate physical and psychological threat and horror sequences. Although some scenes may be disturbing, the overall tone should not be. Horror sequences should not be frequent or sustained”. Additionally, in relation to violence they said the rating stated, “There may be moderate violence but it should not dwell on detail”. Surfshark B.V. said they considered those requirements were not exceeded in the ad, and viewers were well warned by the disclaimer, particularly those who might be unfamiliar with the channel.
Surfshark B.V. also said that the ad had been targeted only to adults and that was demonstrated by the channel’s YouTube statistics, which indicated that 93% of the audience were adults. They said that therefore considering the audience were mainly adults who were well-informed about the content of the video due to the disclaimer, it was not possible that the ad could be recognised as irresponsible to consumers and society.
Turbopunch Ltd t/a TomSka explained that they had made concerted efforts to ensure that the overall tone and presentation of the sketch in the ad was not excessively violent, threatening and/or distressing, taking guidance from the BBFC and ASA into consideration. They said their intention was not to shock the viewer, but to educate them about the Surfshark VPN service and portray the commercial message in an unconventional comic and irreverent manner. They believed the ‘12+’ age guide for the ad felt appropriate as it correlated with the BBFC’s rating guide for 12A productions. They said the ad was made and directed for an adult audience which was evident from the disclaimer at the beginning, and the audience demographic for the channel and video. They also said the ad had been prepared for an age-appropriate audience and, in the event that any younger viewers happened upon the video, the disclaimer attempted to avert and forewarn them of the content.
Turbopunch Ltd said the initial joke in the ad referencing taxidermy carried out on a plastic doll and the surrounding content set an irreverent and satirical tone with dark comedic elements for the following scenes, and indicated to viewers the ad was absurd and not intended to be taken seriously. They said the sketch continued with Eddie annoying TomSka until, out of frustration from the annoying repetition, he broke a glass on Eddie’s head. They said that was the only visibly violent scene in the sketch and lasted only two seconds out of the approximate one minute and 32 seconds of the ad. Turbopunch Ltd further said that in the next scene Eddie was seen smiling maniacally and continuing with his annoying repetitive antics. Such visual cues mitigated any perceivable distress caused and meant that viewers would conclude he was not actually hurt. They also said Eddie was seen afterwards with a small amount of perceivably unrealistic bright red blood his head; there was no make-up or head dress to portray the injury as a real or an excessively gory wound.
Additionally, Turbopunch Ltd highlighted that the following scene in which TomSka screamed, featured no visible violence. Afterwards TomSka was featured with bright red fake blood on his hands and on his face, which appeared like cheap face paint, with no visible wounds or gore. They said TomSka was grinning comically afterwards whilst delivering commercial information which added to the absurdity of the ad and also mitigated any perceivable scenes of distress.
Turbopunch Ltd said the whole visual narrative and script was entirely unrealistic and absurd and contained several juxtaposed comic elements that fed into and exaggerated the bizarre and silly, satirical, nature of the sponsored sketch. That included the bright, multicoloured background, canned laughter, an irreverent joke, excessive smiling and grinning, a ukulele jingle, and the over-the-top reactions to the annoying provocations by Eddie. They believed a reasonable person viewing the ad in the context of such visual-audio cues would understand the over-the-top nature of the segments as a slapstick response to the linear progression of the sketch, comprising the build-up of frustration by TomSka and his satirically excessive response in order to ‘shut up’ Eddie’s antics. As a result they said the ad was unlikely to disturb and/or distress the audience, in particular an audience comprised of over 90% adults of the channel and video viewership.
Turbopunch Ltd provided data from YouTube with viewer ages for the Last One to Leave the Garden Wins video, indicating 7.1% were aged 13-17 years and 92.9% were 18-65+ years. They also provided data for the TomSka & Friends channel stating 8.3% were ages 13-17 and 91.8% were adults. They said those demographics showed that the overwhelming majority of viewers of both the channel and the video, were adults and that all viewers were over 12 years old. The video, therefore, was not irresponsibly targeted.
Google said the content was uploaded to the channel but was not served as an ad through Google Ads, and therefore under the terms agreed to by YouTube users, it was the user’s responsibility to abide by applicable law.
1. & 2. Upheld
The CAP Code stated that marketing communications must be prepared with a sense of responsibility to consumers, and must not cause fear or distress without justifiable reason.
The ad featured a sequence of events in which one of the presenters (Eddie) on three occasions interrupted and recounted facts about Surfshark in an excessive manner which caused his co-presenter TomSka to grow visibly angry. In the second instance he poured a liquid that appeared to be alcohol into a glass and drank it in one gulp, before then smashing the glass over Eddie’s head. Eddie was then seen whimpering and with a blood-like substance on his face, before continuing with the repetitive listing whilst smiling. TomSka became angry again and suddenly turned and screamed in his face. The screen video abruptly cut to a static screen, before he appeared again with blood that was theatrical in appearance on his hands and face. There was a sound of flies and Eddie’s seat was empty and he did not reappear.
The ASA acknowledged that the ad was intended to be humorous and satirical. The canned laughter and repetitive nature of Eddie’s behaviour, as well as the juxtaposition of the anger expressed by TomSka with the commercial messages the pair were delivering throughout, contributed to the ‘slapstick’ tone of the ad. We considered the ad implied that Eddie had been injured and was dead as a result of TomSka’s actions, but the end of the ad was delivered in a comical tone with TomSka laughing and stating “Now back to the show”.
However, there were two scenes in the ad that depicted notable displays of violence or implied violence. In particular we considered that the smashing of the glass on Eddie’s head was an act of serious violence, which could lead to serious injury if it occurred in real life. In the ad TomSka appeared to be shaking with anger and hit Eddie with the glass with considerable force, while making a roaring sound and bearing an angry expression. Additionally, we considered the later scene in which TomSka screamed at Eddie, and the ad cut to a static screen, implied that another act of significant violence had taken place.
The ad portrayed a building sense of anger due to Eddie’s interruptions, and in those moments TomSka rapidly switched from a cheerful demeanour to displaying aggressive body language and expressions, and spoke in an angry and threatening tone. That tone was also further emphasised by a high-pitched noise, which featured when he became frustrated. Although there were slapstick elements to the ad, we considered that the specific moments featuring TomSka’s outbursts appeared to portray genuine aggression and violence, and that those scenes were likely to cause shock and distress to viewers. We considered that the nature of those scenes and the level of violence, particularly the act of smashing a glass over a person’s head, were not justified.
Furthermore, the violent scenes in the ad were not in line with the content in the overall “Last One to Leave their Garden Wins” YouTube video, in which the ad was embedded. The video featured the presenters completing a challenge of camping in their gardens, and was humorous in tone and did not include any violent or threatening content, therefore we considered the violent scenes in the ad were likely to be more jarring and unexpected to viewers in that context. Notwithstanding that the media in which the ad featured did not appear to be directed at children, and that the evidence provided suggested the viewers of the video and TomSka and Friends YouTube channel were predominantly adults, we considered that the content of particular scenes in the ad was unlikely to be suitable for either children aged 12 years and over or for a general adult audience.
We therefore concluded on balance that the ad irresponsibly featured scenes with a level of violence that was likely to cause distress to viewers that was unjustified. Consequently, we concluded the ad was irresponsibly targeted on YouTube as it was unsuitable for delivery to a general audience.
The ad 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. (Social responsibility) and 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).
The ad must not appear again in the form complained about. We told Surfshark B.V. and Turbopunch Ltd t/a TomSka that they must ensure future ads were prepared responsibly and did not contain violent scenes that were likely to cause unjustified distress to viewers.