Summary of Council decision:
Two issues were investigated, both of which were Upheld.
An ad on YouTube for the 18 PEGI (Pan European Game Information) rated videogame "The Evil Within" showed a darkened corridor, interspersed with shots of work tools. It showed a man sitting, in a darkened room, at a workbench, working with barbed wire and then cut to a man who was studded with broken glass. It also showed large, shadowy figures carrying menacing weapons and a man wrapped in barbed wire, with bloodied creatures crawling around a warehouse. It later showed a flayed human corpse which was also wrapped in barbed wire and it then cut to a bubbling pool of blood, out of which a blood covered multi-limbed creature arose and crawled towards the camera. The ad then showed what looked like a man lying down with a metal box on his head, out of which exploded, what appeared to be, bloody tentacles.
The complainant, who saw the ad, which was attached to and shown before a video about a children's play set, challenged whether:
1. the ad had been responsibly targeted because it appeared before a video which would appeal to children; and
2. the ad's content was distressing and offensive because it was excessively gory.
1. & 2. Zenimax Europe Ltd (Bethesda) said the placement of the ad was arranged by their external advertising agency which had been advised that it was to be solely targeted at logged in YouTube users, who were male and aged 18 to 35 years.
Bethesda understood that YouTube's guidelines for targeting ads in this way were based on a blend of "sign-in" information and "inferred information" which meant there was no guarantee that an ad would never be served to a non signed-in YouTube user. They said a user's browsing preferences and search history affected the kind of ads that could be shown before YouTube content was presented. They explained that, in this case, the complainant's prior preferences and search history might have indicated his interest in video games and/or horror films and he might have been linked also to Bethesda's videogames, thus leading him to appear on a cookie list. They added that signing out of the YouTube account did not result in the deletion of a user's browsing preference and search history, which might affect the types of ads he would see before the YouTube content was shown.
Bethesda explained the ad was served as a 'skippable' pre-roll, meaning that users could skip the ad after five seconds. They understood the complainant had provided a screen shot of the ad timed at 20 seconds into the ad's duraction. They said the complainant could have skipped the ad 15 seconds earlier, which they believed would have lessened the impact of the ad. They added that the PEGI 18 game logo appeared in the opening segment of the ad and they believed the user had the opportunity to immediately skip the content, if they were younger than 18 years old.
Bethesda believed they had served the ad responsibly ‒ they had taken steps to limit the targeted audience and avoided causing serious or widespread offence or fear and distress without justifiable reason. They said the ad was no longer appearing on YouTube.
YouTube said the advertiser ran the content as an ad through Google's AdWords programme and they felt it would be appropriate for the content to only appear behind an age gate. They explained that AdWords was a self-administered system and it was the advertiser's responsibility to choose appropriate targeting of their ads. Under AdWords' terms and conditions, advertisers remained responsible for complying with the CAP Code, although YouTube had various systems in place to compel compliance with certain standards.
The ASA noted the ad was targeted to males aged 18 to 35 who were signed into their YouTube account. We understood, however, that the ad could still be served to users who had previously searched for horror movies and/or video games, even when they were not signed into their account.
The complainant had searched for YouTube content featuring the children's toy, "Thomas the Tank Engine" and was presented with the ad before his chosen video played. We also understood from the complainant that he signed out of YouTube and nevertheless had been served the ad. We acknowledged the steps Bethesda had taken to ensure targeting so that the ad would only be served to those who were signed into their YouTube accounts and who had sought out similar products based on the user's Google search terms. However, we were concerned that even though the ad was targeted to "signed in" YouTube users, there was still the possibility the ad could be served to users who were under the age of 18 whom, by way of their internet searches, had expressed an interest in video games and/or horror movies. Because there was a possibility that users under the age of 18 could be served the ad, we concluded the ad had not been responsibly targeted.
On this point, the ad breached CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Social responsibility).
We recognized the ad was atmospheric and created a sense of apprehension and reflected the theme of the game, survival horror. We acknowledged Bethesda had taken steps so that the ad was served to those over the age of 18 and who had sought out material relating to video games and/or horror movies. Although there were no acts of violence against people depicted in the ad, it contained images of a person covered in shards of glass, someone wrapped in barbed wire, a flayed corpse wrapped in barbed wire, bloodied creatures crawling around a warehouse-type building and a bubbling pool of blood, out of which a bloodied creature rose. Multiple shots of bloodied fingers, caused by handling barbed wire, featured throughout the ad and the end shot featured what appeared to be a man's head exploding into bloody tentacles. We recognized the ad contained content which reflected the game's theme, which we also noted was PEGI-rated 18. However, we considered those images were excessively gory and were likely to cause distress and offence to some who saw the ad.
On this point, the ad breached CAP Code (Edition 12) rules
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. 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 its current form.