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From March 1st, the ASA’s online remit will be extended to cover marketing communications on organisations’ own websites and in other non-paid-for space under their control. The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) will apply in full to marketing messages online, including the rules relating to misleading advertising, social responsibility and the protection of children.
This significant development in advertising regulation is good news for both consumer and business protection as it will ensure the same high standards as in other media. It will cover:
- Advertisers’ own marketing messages on their own websites, regardless of sector, type of businesses or size of organisation
- Marketing communications in other non-paid-for space under the advertiser’s control, such as social networking sites like Facebook and Twitter.
SanctionsWe already know that if a marketing communication is considered in breach of the Advertising Codes, the vast majority of marketers willingly undertake to amend or withdraw the marketing communication. If they refuse, CAP’s present sanctions are very effective at gaining compliance and these will apply to the new remit. However to strengthen CAP’s ability to secure compliance on websites and in other non-paid-for space online under the advertiser’s control, CAP’s member bodies have agreed new sanctions:
- Providing details of an advertiser and the non-compliant marketing communication on a special part of the ASA website.
- Removal of paid-for search advertising – ads that link to the page hosting the non-compliant marketing communication may be removed with the agreement of the search engines.
- ASA paid-for search advertisements – the ASA could place advertisements online highlighting an advertiser’s continued non-compliance.
FundingThe industry has agreed to apply the standard 0.1% levy on paid-for advertisements appearing on internet search engines through media and search agencies. This is an extension of the existing funding mechanism in other media that pays for the ASA and it will be supplemented initially with seed capital from Google.
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.The ASA receives many complaints about the use of sex in advertising. Those uses include implicit or explicit references to sexual intercourse, gratuitous images or innuendo or sexual stereotyping.Many complaints are about the depiction of women and the acceptability of the ad will depend on several factors including: the product advertised, the way in which the woman is depicted, the choice of medium, the target audience, the tone of the ad and the impression created. In the last few years, the ASA seems to have been more relaxed about marcoms featuring the gratuitous use of nude or semi-nude men or women. But marketers should remember that unjustified nudity can be perceived as sexist and can cause serious or widespread offence, especially in untargeted media or if combined with innuendo. For example, a poster, showing a woman’s bottom in a thong, with the headline “Attention seekers … you don’t need to go this far to stand out from the crowd” was acknowledged as being irrelevant to the product but considered unlikely to offend (Evolution Graphics Ltd, 19 December 2007). But a poster, for a lap dancing club, that showed a woman in her underwear kneeling on the floor and holding a foaming bottle of champagne was considered to have caused offence because of the allusion to oral sex (Grace of Brighton, 6 February 2008).One way to minimize the risk of nudity offending is if it is relevant to the advertised product: if it is, the ASA is less likely to uphold complaints; toiletries and lingerie are good examples of products for which nudity is likely to be acceptable. Marketers should not take that to mean all risqué ads for those types of products will be acceptable. One marketer found that its sexually charged ad was considered pornographic and degrading to women (Agent Provocateur, 11 February 2004).Marketers should take care not to depict women in demeaning, subservient, exploitative, degrading or humiliating ways because such approaches are likely to cause serious or widespread offence . For example, the ASA upheld complaints about an ad, for an adult TV channel, that featured a woman in underwear in various positions with strings attached to her hands and feet. The ASA considered images of women as a puppet controlled by men was likely to be seen as offensive and demeaning to women (Playboy TV, 28 July 2004 and 18 August 2004). In 2007, the ASA received complaints about a direct mailing that stated “You’d employ her to pull a few pints … and a few new customers. Wouldn’t you? BUT NOT TO DO YOUR ACCOUNTS!” beside a photograph of a young woman, with her breasts partly exposed. The ASA considered that the ad was likely to cause serious offence (Licensed Trade Accountants, 2 May 2007).Innuendo that is intended to be light-hearted can be acceptable but degrading language or visuals can offend (Universal Cycles plc, 26 November 2003, described a provocative-looking woman as an ”office bike” and Cannondale Europe BV, 24 September 2003, seemed to link women to the claim “Test ride and then decide”). Innuendo that is vulgar, especially in untargeted media, is likely to generate complaints (Universal Cycles plc, 26 November 2003, showed provocative-looking women asking “would you like to go down on me?”. Bikelab, 25 August 2004, also used vulgar innuendo that the ASA considered breached the Code. The ad, for a bike, claimed “… this baby’s got 5” in the rear and is hungry for marathon riding sessions. She craves stiffness and loves to get down and dirty as long as she gets a good lubing after … she loves to be abused so give her all the spanking she deserves …”). A poster campaign that referred to well-endowed men, ejaculation and S&M sex was considered offensive (Halewood International, 16 June 2004).Marketers should be extremely careful before condoning sexual violence (Nokia UK Ltd, 3 March 2004 (complaints 2 and 6)). See ‘Sexual Violence’.Overtly sexual themes or sexually explicit visuals can offend, especially if the choice of medium means that the marcom is seen by people outside the target market. A good example is a Gucci ad that appeared in women’s style press and showed a man kneeling at the feet of a woman who had lowered her underwear to reveal pubic hair in the shape of ‘G’. The ASA considered that the ad was unlikely to offend because it had been carefully targeted and was so stylised it was not sexually explicit; the decision might have been different if the choice of media was not so selective (Gucci, 26 February 2003). Similarly, an ad in Ride magazine showed a woman’s bottom in a pink thong. Although the complainant thought the ad was sexist, the ASA considered the ad was unlikely to offend readers (DK Motorcycle Group, 19 December 2008). But an ad, in the Sun’s TV listings magazine, for mobile phone wallpaper, vide games and ringtones was found to have breached the Code because it included images and captions considered unsuitable for a page likely to be scrutinized by children (Red Circle Technologies Ltd, 7 November 2007).Depictions or allusions to sexual intercourse, masturbation or oral sex can offend, especially if irrelevant to the product, too explicit or poorly targeted For example, a poster that showed a female plumber kneeling in front of a radiator and the claim “grinding, banging, stripping, spreading, screwing, sucking … job done” was considered offensive (Balloo Hire Centre, 22 November 2006). As was a poster, for a lap dancing club, that showed a woman kneeling over a frothing bottle of champagne (Grace of Brighton, 6 February 2008). But humour seems to sometimes get marketers off the hook. In 2007, the ASA did not uphold a complaint about a poster that advertised the opening of a new lingerie store and was headlined “Making Devon Cream” (Ann Summers Ltd, 29 August 2007).Sexual stereotyping, whether men or women, can cause offence (The Creative Circle, 26 May 2004, and Lormar Ltd, 7 July 2004). A Mazda ad suggesting that an elderly woman had given unreliable directions was not considered to be sexist (Mazda Motors (UK) Ltd, 30 August 2006). See ‘Taste and Decency: Stereotypes’.Finally, references to homosexuals need to be handled with care. Although society is more relaxed about the depiction of gay sex, ads that have used, for example, gratuitous lesbian overtones to titillate and attract attention have breached the Code (Checkit UK Ltd, 17 October 2007). Of course, marketers are not prohibited from using homosexual imagery, especially if it is relevant. And ASA rulings seem to indicate that playful portrayals of gays are acceptable but derogatory terms such as ”fruit” are not.Because it is often difficult to judge whether ads are likely to offend, and because that can sometimes change quite quickly, the Copy Advice team is always happy to give advice on potentially offensive ads.
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.Concern is growing that many advertisements for escort agencies, saunas and massage parlours are, in fact, advertising brothels where illegally trafficked women are being forced into prostitution. Many of those ads appear in the personal or classified sections of local or regional newspapers.Private classified advertising is not regulated by the ASA, which cannot therefore stop those types of ad from appearing. Business classified ads, on the other hand, are within the ASA’s remit and could be investigated if a complaint was received. The ASA will consider only the content and context of the ad and cannot investigate or make judgments about the business or service that lies behind the ad. In other words, the ASA cannot comment on the legality or otherwise of a business or service.All marketers are obliged to ensure their marcoms are legal, incite no one to break the law, are prepared with a sense of responsibility to consumers and to society and avoid causing offence. Irrespective of the legitimacy of the business, explicit images of naked or semi-naked women might offend as might claims that are disrespectful to women. Claims that allude to young or vulnerable women, especially those from Eastern Europe might be seen as socially irresponsible. For example, claims such as “Fresh New Girls Every Week” or “Hot, Young Babes – All Nationalities Daily” are almost certainly a problem.Many legitimate businesses offer agency, sauna or massage services and the ASA distinguishes between the offence caused by advertising and that caused by the product. Claims such as, “Come in for a deluxe massage”, “Spend an evening with the Valley’s best escorts”, “Saunas – Men Only” or “Visit Saucy’s Escort Agency” are unlikely to breach the Code.Both CAP and the ASA are keen to ensure that legitimate businesses may trade and advertise if they do so legally, decently, honestly, truthfully, fairly and responsibly.Publishers and media owners should be aware of the concern and should use their discretion when accepting ads for services that could involve enforced prostitution.