A tweet, an Instagram and a Facebook post from The Otley Burger Company, which appeared on their own social media accounts:
a. The tweet posted on 27 March 2022, stated “Burgers for dinner?” Below was an image of the missing child Madeleine McCann and her mother Kate, with text which stated “WITH BURGERS THIS GOOD, YOU’LL LEAVE YOUR KIDS AT HOME. WHAT’S THE WORST THAT COULD HAPPEN”. In the background a man was shown running with a smaller image of Madeleine McCann in his hands. Text at the bottom of the post stated “HAPPY MOTHER’S DAY TO ALL THE MUMS OUT THERE.”
b. The Instagram post, also posted on 27 March 2022 featured the same images as ad (a) and included text which stated “Happy Mother’s Day to all the mums.” It also stated “this is not an advert …”
c. The Facebook post was also seen on 27 March 2022 and featured the same images as ads (a) and (b).
IssueThe complainants challenged whether ads (a), (b) and (c) were likely to cause distress and serious or widespread offence.
The ASA considered the nature of the content to be of such a concern that we asked the relevant social media platforms to remove the content and suspend the account pending our investigation.
The Otley Burger Company said that they would not use photos of Kate McCann in that manner again or superimpose images of Madeleine McCann being kidnapped. They said that all ads had been removed and would not be appearing again. They also said the image was a meme and there was no product placement, so it was not advertising.
Meta stated that they had reviewed the content in the Instagram post and had removed it for violating their policies. They undertook a broader review of the Instagram account, removed further content and placed restrictions on the account.
Twitter said the tweet had been deleted.
Ads (a), (b) and (c) appeared in non-paid-for space online, which was under the advertiser’s control, and were directly connected with the supply or transfer of The Otley Burger Company’s goods and services. The ASA therefore considered they were marketing communications within the remit of the CAP Code.
The CAP Code stated that marketing communications must not contain anything that was likely to cause serious or widespread offence. It also stated that advertisers must not use a shocking claim or image merely to attract attention.
The ad contained an image of the missing child Madeleine McCann and her mother Kate McCann. The disappearance of Madeleine McCann had been a high-profile and long-running media story which remained widely known. We considered the images of them would be instantly recognisable to many people. We further considered that any reference to a missing child was likely to be distressing, and that in the context of an ad promoting a burger company, the distress caused was unjustified.
The ad also stated “With burgers this good, you’ll leave your kids at home. What’s the worst that could happen”, along with the background image of a man running away with a superimposed photo of Madeleine. We considered these elements further trivialised the circumstances surrounding Madeleine’s disappearance and made light of a distressing news story concerning reports of child abduction and serious crime.
We noted that the ads were all posted on 27 March 2022 which was Mother’s Day. We considered that in combination with the images, the posting of the ads on that date was intended to further add to the shock factor and offensive nature of the ads. We also considered it was likely to have compounded the distress of those who saw the ads, and particularly for those who may have experienced the disappearance of a child.
For those reasons we concluded that the ads were likely to cause unjustified distress and serious and widespread offence.Ads (a), (b) and (c) breached the CAP Code rules
Marketing communications must be prepared with a sense of responsibility to consumers and to society.
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: age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. 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. 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 ads must not appear again. We told The Otley Burger Company to ensure they avoided causing serious and widespread offence and distress.