A YouTube video on the TomSka & Friends YouTube channel, seen in January 2022. The video was titled “Thomas The Tank Engine is Darker Than You Think”. At approximately three and a half minutes into the video, the voice-over and on-screen text said, “But first a word from our sponsors.” A man was then shown tied to a chair, a sack over his head and blood spatters on the floor. A knife was heard being sharpened. A second man entered and took the bag off the first man’s head who was shown to have a black eye, a cut to the side of his face, a bleeding nose and blood on his top. The first man said, “Please, I didn’t mean to, please!” The second man hit him around the face and the first man appeared to spit out a tooth. The second man said, “Do you like my videos Joel?” Joel said in a frightened voice, “Yes…Yes I…” The second man said, “You’ve seen all of them?” Joel said, “Yes”. The second man said, “Really. Wow … See that’s funny though because if you’ve seen all my videos then you have probably watched a dozen ads for Surfshark VPN.” Joel said, “Look I … I don’t know why …” The second man then hit him around the face and said, “3200 servers across 65 countries Joel. Usage across unlimited devices with just one subscription.” He then stabbed a knife into Joel’s leg who screamed in pain. The second man said, “Anonymity and protection from hackers and malware even on public wi-fi.” He then tasered Joel in the neck. Joel said, “I know, I know please stop, stop hurting me.” The second man said, “Then why? Why join Nord fucking VPN?” Joel said, “Because Eddie told me to. He did an ad for them on his channel and I was weak alright, I didn’t know what to do.” The second man said, “It was Eddie? Joel, Eddie is already fucking dead.” He pointed to a collection of bin bags with bloody body parts and the sign “Traitor” on it. Joel said, “Oh God! Okay okay I promise I’ll sign up for Surfshark and I’ll use the code “TomSkaFriends” for 83% discount in four months.” The second man leant forward, pointing at Joel, and shouted, “Three months.” Joel said, “Three months! Three months extra for free! Just let me go please.” He went behind Joel and cut him free from the chair. Joel ran off. The second man yawned and said, “Another satisfied customer. How many more do Surfshark need us to get?” A third man walked in holding a piece of paper and said, “Just one.” Both men looked at the camera, held out their hands and the shot went in close on both of them. The camera then went dark.
IssueThe complainant, who believed the ad was excessively violent and threatening, challenged whether the ad would cause unjustifiable distress was harmful, irresponsible and offensive.
Surfshark said that a clear disclaimer was displayed at the start of the video, which warned of strong language, strong violence, mild gore and featured a suggested age rating. Therefore, they said the audience was warned about the content and those unfamiliar with the channel, who did not want to see such things, would have been prevented from seeing it. In addition, those who followed the channel would be well aware of the humour featured in the ad, which they believed was clearly satirical.
Surfshark said that the video had more than two million views but only received one complaint. They stated the large number of views, with only a single complaint, showed that the ad was unlikely to cause viewers fear and distress.
Surfshark said that if necessary they could age restrict the video or remove the relevant content.
Thomas Ridgewell said that the video contained a disclaimer which warned of the content and featured an age rating suggestion. Therefore, the audience was made aware of the humour in the ad, which he believed was satirical in nature.
Thomas Ridgewell said he was willing to use YouTube’s on-site age verification to guarantee only viewers over 18 years of age with a verified YouTube account could access the video. Alternatively he explained he was willing to remove specific elements of the ad or remove the content completely.
The ASA acknowledged Surfshark’s willingness to remove the ad.Marketing communications must be prepared with a sense of responsibility to consumers and to society and must not cause fear or distress without justifiable reason.
The ad portrayed a realistic depiction of a man tied to a chair, beaten and attacked with weapons, in an attempt to convince him to take out a Surfshark product. The man was shown with visible injuries, he was punched in the face, stabbed in the leg and tasered around the neck. The victim exhibited a genuine state of fear and the threats of violence and torture in the ad were directed to the viewer at the end of the ad, when it was implied that they would be the assailants’ next victim.
We acknowledged that the ad was cinematic in presentation and content. The use of familiar film tropes and the jarring juxtaposition of the violent actions with a commercial message, hinted that the violence was satirical. Nevertheless, the promotion of the product in the ad, which had very little relevance to the advertiser’s service, and the use of film conventions did not mitigate the extreme, threatening and realistic violence, which were depicted in an authentic way and without obvious humour.
We noted that the video did begin with a short disclaimer explaining the content and gave a suggested age rating of 15 years plus. In addition, we acknowledged that for subscribers to the channel, they would likely be familiar, to an extent, with the subject matter in the ad. However, the video was not restricted in any way and was available for anyone to watch. Further to that we considered the disclaimer in the ad only appeared briefly and did not fully convey the level of violence and threat contained in the ad.
We considered that the overall presentation of the ad was excessively violent, threatening and distressing to the extent that it overshadowed any attempt at humour and any commercial message the ad intended to convey about the product. We therefore concluded the ad was likely to cause fear and distress to viewers without a justifiable reason.
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. (Responsible advertising) 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).
We told Surfshark Ltd to ensure that in future their ads did not cause fear or distress without justifiable reason.