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Filthy elf – remember, advertising is regulated

“Oh Elf, we know it’s nippy outside but not that kind of nippy! #ElfBehavingBad”

“Rub-a-dub-dub, three in a tub. A night of ‘Selfies and chill’. #ElfBehavingBad”

“Joker, joker. I really want to poker”

“Don’t tell Rudolph I’ve found a new piece of ass”

All the above quotes have been taken from the now infamous Poundland advertising campaign, and many more were accompanied by images that we won’t be reproducing here – it’s in our clients’ interests that the Advertising Standards Authority (ASA) like us, after all…

The ASA required the discount retailer to respond to 85 public complaints that: (1) the ads were offensive, and (2) the ads were unsuitable as they were not targeted and could be seen by children.

In response, Poundland said that:

  1. they did not intend to offend anyone and a large number of people found it humorous and “in line with what it meant to be British”
  2. the ads were extremely popular – 33 million impressions and 4 million engagements
  3. kids don’t understand double-entendre, and
  4. that the ads were on Twitter and Facebook, which did not permit under 13s.

Despite this strong rebuttal, these arguments failed because:

  • There was no age gate to prevent access to Facebook and Twitter, even without an account, and the ads were widely shared
  • The references to sexual acts were obvious in some instances
  • The depiction of a child’s toy in relation to sexual acts was likely to cause widespread offence and was irresponsible
  • The references to poker and a fairly overt visual reference to a sexual act that could be seen as demeaning to women

The ASA ordered the campaign to be scrapped in its current form, and Poundland was told to take responsibility for its campaigns and not cause widespread offence.

So what does this mean?

Firstly, you might be forgiven for noting that 4 million engagements, despite an ASA reprimanding, is something of a campaign success. However, this would be to ignore the long list of sanctions that the ASA has at their disposal, particularly for repeat offenders. You can have a look at their handy guidance list here.

No comment from us on the content of the campaign itself, but some of the issues could clearly have been dealt with by targeting the campaign properly, and conducting proper pre-publication clearance. This would surely have unearthed some of the issues with misogyny and combining sexual imagery with children’s toys, and preventing what could have been an advertising campaign well loved and remembered for its British dry humour, instead of an advertising campaign now mired in controversy.

Concerned that one of your planned advertising campaigns may dance a little too close to the edge? Wondering whether the ASA will take notice of one of your adverts for all the wrong reasons? Get some expert advice from our team by clicking here.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Categories: IP & Media | Digital Media & Technology

Love Poems and the Issue of Consent

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We’ve been talking to our media clients about the recent decision in Tumber v ITV [2017] EWHC 3093 (IPEC). The judgment kicks off rather promisingly with: In January of this year the claimant, Mr. Tumber, wrote a love poem… This poem was sent to an...

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