Who: Committee of Advertising Practice (CAP)
Where: United Kingdom
When: 19 June 2014
Law stated as at: 2 July 2014
At the beginning of the year, the Advertising Standards Authority (ASA) received a record number of complaints (5,525 to be precise) relating to an ad issued by bookmaker Paddy Power. The ad included an image of an Academy Award ‘Oscar’ statuette with the face of the athlete Oscar Pistorius imposed on it. The text of the ad then stated “IT’S OSCAR TIME”, “MONEY BACK IF HE WALKS” and “WE WILL REFUND ALL LOSING BETS ON THE OSCAR PISTORIUS TRIAL IF HE IS FOUND NOT GUILTY”.
At the time the ad appeared in the UK national press, Oscar Pistorius’ trail for the alleged premeditated murder of his girlfriend Reeva Steenkamp was about to begin in South Africa. Those who filed complaints with the ASA generally found the ad to be insensitive by trivialising the issues surrounding a murder trial, the death of a woman and/or disability. Many also considered the ad was likely to cause serious or widespread offence. The ASA added its own challenge and queried whether the ad brought advertising into disrepute.
The ASA upheld all complaints against Paddy Power and, amongst other things, made it clear that references (whether direct or implied) to anyone who was dead must be handled with particular care and that the ads went beyond simply being in poor taste and were likely to cause serious or widespread offence. They did this by trivialising the sensitive issues surrounding the murder trial and making light of disability.
It was also acknowledged that the ad had appeared in the context of a high profile murder trial that had received extensive media coverage and was of interest to the public. The ASA therefore felt it would have been reasonable to foresee serious or widespread offence was likely to be caused by placing an ad that sought commercial advantage from the trial and which made light of the sensitive issues involved. The ASA held the ad brought advertising into disrepute “given the content of the ad, and the prevailing circumstances at the time of its publication…“.
CAP guidance on rule 1.5
Probably following the Paddy Power ad complaints, CAP has now issued some new advice on rule 1.5 of the CAP Code (see here for details). This is the provision that states no marketing communication should bring advertising into disrepute.
As part of this guidance, CAP acknowledges that in practice the ASA appears to only apply this rule in exceptional circumstances and in particular where it should have been foreseeable to a marketer that publishing an ad would amount to a serious breach of the Code.
Generally the ASA has triggered this rule where a Code breach should have been foreseeable either due to the sensitive nature of the subject matter of the ad and the circumstances in which it appears, or because the marketer has breached assurances to the ASA that the copy in question will not be used again.
Amendments to rule 1.5
When devising its advice on the application of rule 1.5, CAP also considered whether the Code adequately addressed the issue of breaching rule 1.5. It was felt that a minor amendment should be made to the CAP Code in this respect (had major changes been required then a public consultation would have been required to assess their impact).
CAP felt that the Code already enables the ASA and CAP to require persistent offenders to have their non-broadcast advertising run past the Copy Advice team before it can be published and that this sanction would also be appropriate for advertisers who breach rule 1.5 and bring advertising into disrepute. The How the System Works section of the CAP Code has therefore been revised and now states (see underlining below for emphasis):
“The ASA and CAP may require persistent offenders, or those whose marketing communications bring advertising into disrepute, to have some or all of their marketing communications vetted by the CAP Copy Advice team until the ASA and CAP are satisfied that future communications will comply with the Code.”
Why this matters:
CAP has introduced this revision to the CAP Code without public consultation as it felt it was a minor amendment only (and probably in the best interests of the industry to ensure consumer confidence in advertising and its self-regulatory system).
What this now means in practice is that those advertisers who are known for being mischievous with their campaigns and those who might be tempted to push the boundaries on occasion may find a consequence of walking close to the line of potential offence is that they then have to go to CAP for the pre-vetting of their future campaigns. It should also be noted that the new wording in the CAP Code says pre-vetting sanctions “may” be required. It is therefore not automatically the case that this sanction will be triggered by the ASA but it would certainly be an option available to the ASA if they feel an advertiser must be held in line due to serious offence caused by their campaigns or their disregard of previous ASA rulings.