While the Committee of Advertising Practice deliberates on whether to extend the ambit of the CAP Code to viral marketing emails, the Advertising Standards Authority has pronounced judgement on two viral email campaigns.
Topic: Email marketing
Who: Powerleague and Vivendi Universal Games
Where: The Advertising Standards Authority
When: August/September 2005
Two advertisers were in the news over so-called "viral" digital marketing communications.
Vivendi Universal Games ("VUG") sent promotional e-mails for a computer game titled "Your help needed – free Andrew Sterling". Attached to the e-mails was a video clip purporting to show the fictional "Andrew Sterling" character, who featured in the game being promoted, being interrogated and tortured with a knife.
The initial email with attached video clip was devised on behalf of VUG by online agency Making Waves. The message ended with a promise to put the video clip up on the main game website, but the marketing press was under the firm impression that the email was intended to be "viral" with the recipients of the message forwarding it on to their friends.
"Offensive" and "distressing" complaints
Complaints were received that the emails were offensive and distressing and contrary to the CAP Code on that account.
VUG defended on the basis that the email had been sent only to people who had broadband connections and were over 18 years old and it should have been clear to all recipients who followed the directions in the message and went to the website that the campaign was an advertisement. This clarity would have been achieved, VUG said, because they had included on the website a "BBSC 18+" logo. Once the game had been released VUG's website had also been amended to make clear that the email campaign was a promotion for the computer game.
The ASA noted that the mailing was sent to people over the age of 18 only, but it still considered that because it depicted a violent interrogation and torture, the ad was likely to cause serious offence: complaint upheld.
Second viral message under scrutiny
In a second case, the ASA considered what the ASA report clearly describes as a "viral clip" which had been sent to the complainant by a friend of his. The friend had received the clip as an attachment to an email sent to him by Powerleague, a Paisley-based five-a-side football tournament operator.
The clip showed a woman playing with a hamster in a run-around ball. Her partner then appeared and kicked the ball out of the window like a football. A man then approached the ball as it if was about to kick it and the hamster squeaked. At the same time the word "bugger" appeared on the screen.
The complainant objected that the ad was irresponsible because it condoned and encouraged animal cruelty.
"Humorous and light-hearted" defence
Powerleague said they had sent the viral clip to customers who had registered on their website to receive further information. It was sent with an email that stated "It's a burning issue in sport today; do hamsters have a role to play in football? They do in our hilarious new viral advertisement. Click through for your sneak video preview. And please don't try this at home."
Newhaven Communications, the advertiser's agency, said they believed the viral clip would not encourage cruelty to animals because it was light-hearted and humorous. They added that during filming the hamster had not been in the ball when it was being kicked and a vet had been present. They emphasised also that the viral was intended to appeal to Powerleague customers, who were over 18 years.
The ASA noted the arguments put to it and in particular the phrase "Please do not try this at home." They believed that the clip would be seen by most recipients as light hearted and rejected the complaint.
Why this matters:
The final outcome of both these cases is perhaps hardly surprising, but one question that both leave unanswered is that of when viral email marketing falls outside of the clutches of the CAP Code and the ASA.
The accepted wisdom appears to be that the ASA will get involved where advertisers initially "push" viral emails to a target group of consumers. Where it does not get involved is where an advertiser posts material such as an ad on a website and then encourages visitors to the website to download the information and pass it on to friends.
In the first case, even if the complaint that is lodged with the ASA is by an individual who has received the email from a friend and not from the advertiser, provided the first email was sent out by the advertiser with an encouragement to pass it on, the message will fall within the Code.
In the second case, so long as the advertiser restricts its activities to a "pull" tactic by encouraging visits to its own website, then the current standing rule that material on an advertiser's own website will not fall within the Code, will continue to apply.
Whether this continues to be the case is open to question. The Committee of Advertising Practice, the guardian of the CAP Code, is currently looking at the possibility of extending the remit of the Code to cover viral marketing. The devil is in the detail, however, and there are vested interests keen to ensure that purely editorial material is not caught by what is an advertising code. The debate currently continues and there is no sign of a resolution any time soon.