Background
Summary of Council Decision:
One issue was investigated in relation to nine ads, of which eight were Upheld and one was Not upheld.
Ad description
Eight ads on American Apparel’s website, viewed in October 2011, and an ad in a free lifestyle magazine available from shops, distributed in October 2011:
a. The first website ad showed a woman wearing lace knickers and an un-zipped hooded sweater. She was arching her back towards the camera and her breasts were exposed.
b. The second website ad showed two women lying face-down on a bed, shot from above. They were looking up towards the camera. They were wearing thigh-high socks and nothing else, revealing their bare buttocks.
c. The third website ad showed the same two women wearing only thigh-high socks. They were lying on their sides, looking towards the camera. Their buttocks, and one woman's breast, were visible.
d. The magazine ad showed a woman lying on a bed. She was wearing a grey jumper and white knickers. Her legs were spread apart and her arms were raised above her head.
e. The fourth website ad was the same image as the magazine ad.
f. The fifth website ad showed two images of the same woman wearing the grey jumper and white knickers. In the first image she was sitting on the bed with her legs spread apart and her hands resting on the bed between her legs. In the second image she was lying on the bed with her legs spread apart. She was looking up towards the camera.
g. The sixth website ad showed four images of the same woman wearing the grey jumper only. In all of the images she was standing, facing diagonally away, and looking over her shoulder towards the camera. Her buttocks were visible in all of the images. The bed was visible in the background.
h. The seventh website ad showed two images of a woman wearing white trousers only. In the first image she was standing side-on to the camera. She was arching her back and holding her arms over her breasts. In the second image she was standing diagonally face-on to the camera. She was arching her back with her arms raised to her head, exposing her breasts.
i. The eighth website ad showed the same two images of the woman wearing white trousers, superimposed over an image of the American Apparel factory building. Grey lines were drawn onto the images of the woman as if they were pencil drawings.
Issue
The complainant challenged whether the images were offensive, because they believed that they were pornographic, exploitative of women and inappropriately sexualised young women.
Response
American Apparel (AA) said they did not believe that any of the images were pornographic, exploitative of women or inappropriately sexualised young women. They said the images on their website featured real, non-airbrushed, everyday people, and that the vast majority of them were not professional models. They said that the sorts of images which appeared were the sorts of images people regularly shared with their friends on social networks and which normal people could relate to. They said the approach was not graphic, explicit or pornographic but was designed to show a range of different images of people that were natural, not posed and real. They said that the women who featured in the images were clearly in their twenties, and emphasised that they were happy, relaxed and confident in expression and pose. They said the women were not portrayed in a manner which was vulnerable, negative or exploitative. They said the partial nudity in some of the images was not explicit or graphic and the poses were intended to show off the products advertised.
AA said that, of the website images identified by the complainant, ad (a) appeared on their corporate website, ads (b) and (c) appeared on their online store, and ads (e) to (i) appeared in a section of their corporate website titled “Advertising” which contained historic advertising images which were not part of a current campaign. They considered that section of their website fell under the CAP Code’s definition of ‘heritage advertising’, which meant that the Code did not apply to ads in that section of the website. They added that that section of their website was likely to be visited by people who were interested in the creative process behind, and the essence of, their brand. They acknowledged that there were links to current products next to the images in the “Advertising” section, but said that they did not think that most people who looked for their products online would search for them through that section of their website.
AA said that, although they did not have any demographic data with regard to visitors to their website, they imagined that the types of products featured in the images were purchased by young adults in the 18 to 35 age range, and in particular, people in their twenties. They considered it was therefore likely that it would be young adult women who would be viewing the images, and argued that such adult women were highly unlikely to be offended by such images. They said that Crack Magazine, in which ad (d) was published, also had an adult audience and they did not think that its readers would be offended by the image
AA said they believed it was important to judge what was and was not offensive by reference to the current times and the views of the majority of decent and reasonable people, not a small and puritanically-minded minority. They said the images in their advertising were less, and certainly no more, sexual in nature than a large proportion of the images of other companies. They provided copies of ads in a variety of magazines and websites to illustrate their view. They said members of the public were frequently exposed to far more sexually exploitative images in advertising, and even more so in newspapers, television and on the internet. AA said they believed that if the complaint was upheld it would be applying a standard of offensiveness and censorship which would be completely out of date in the more adult and non-repressive world of today, and would also mean that the vast majority of lingerie advertising would be deemed to be offensive, pornographic, exploitative or to inappropriately sexualise women.
Crack Magazine responded in relation to ad (d). They said that although it was regrettable that someone had taken offence to the image, this was the first and only complaint they had received about an American Apparel ad in their magazine and as such it seemed that there was a common consensus amongst their readers that the material was not unduly offensive. They said that, although they appreciated the suggestive nature of the pose and clothes in question, in their opinion there were much worse ads in circulation. They said their audience was an educated, mature, adult demographic that would be able to distinguish between a mildly suggestive ad intended to sell something and something totally inappropriate. They said they felt they were able to distinguish totally inappropriate ads and would censor them and inform their advertisers if that was the case. They did not feel that was the case with ad (d).
Assessment
The ASA noted AA’s view that ads in the “Advertising” section of their website fell under the CAP Code’s definition of ‘heritage advertising’, and therefore the Code did not apply to those ads because they were outside the ASA’s remit. We noted the CAP Code defined ‘heritage’ ads as those that did not form part of an advertiser’s current promotional strategy and that were placed in an appropriate context. We noted the ads featured currently available products, and that next to the ads were links to those products on AA’s online store which enabled visitors to the “Advertising” section to navigate easily to a page where they could purchase the products. We also noted the website stated that the ads had appeared as advertising in the two months prior to October 2011. For those reasons, we considered that the ads formed part of AA’s current promotional strategy at the time the complainant viewed the ads. Furthermore, we considered that the ads were not placed in such a context on AA’s website that they could be considered to be ‘heritage advertising’, because the heading of the section “Advertising” did not make clear whether the ads were past or current, and because the pages included links to currently available products.
Notwithstanding the above, we noted that ads (a) and (e), one of the images that made up ad (g), and the images which made up ads (h) and (i) also featured as part of slideshows which were accessed from pages in AA’s online store.
Upheld in relation to ads (a), (b), (c), (d), (e), (g), (h) and (i)
We noted that ads (a), (b), (h) and (i) featured women whose breasts were exposed, and ads (b), (c), and (g) featured women whose buttocks were exposed. We acknowledged that in some ads, for example ads for lingerie, it was reasonable to feature women in limited amounts of clothing. However, we noted that the majority of clothing items featured in the ads were outer garments, and considered that the nature of the women’s poses meant that their breasts and buttocks were the focal points of the images rather than the products. We considered that the nudity was therefore gratuitous. We also considered the women’s poses in ads (a), (c), (h) and (i) were sexually provocative, because the poses emphasised their breasts and hips, and that although the poses in ads (b) and (g) were more subtle, the nudity and the flirtatious nature of the poses meant they were also sexually provocative. We noted the woman in ads (d) and (e) was wearing a jumper and knickers, but considered that the nature of her pose meant that the focal point of the image was on her groin rather than on the products. We noted the woman was posing on an unmade bed, that she was gazing into the camera, her arms were raised above her head, her jumper was pulled up slightly and her legs were spread apart, and considered that her pose was therefore sexually provocative. We concluded that the gratuitous nudity in ads (a), (b), (c), (g), (h) and (i), in combination with the sexualised nature of the poses, and the sexually provocative pose in ads (d) and (e), meant the ads were exploitative and inappropriately sexualised young women.
We noted the women appeared to have been photographed in everyday locations, without professional lighting, styling or makeup, and considered that resulted in the impression that the images had been taken by amateur photographers and posed by women who were not professional models. We understood that was at least in part because AA generally did not use professional models in their advertising and preferred to use images featuring ‘real’, non-airbrushed, everyday people. We considered that was not in itself problematic. However, we considered that in the particular context of images which featured nudity and sexually provocative poses, there was a voyeuristic and ‘amateurish’ quality to the images which served to heighten the impression that the ads were exploitative of women and inappropriately sexualised young women. We concluded ads (a), (b), (c), (d), (e), (g), (h) and (i) had not been prepared with a sense of responsibility to consumers and to society.
Whilst we noted we had not seen any demographic data with regard to visitors to AA’s website, we noted AA’s view that it was likely that the products featured in the ads would be purchased by young adult women, and therefore that they would be most likely to view the images. We acknowledged that was likely to be the case with regard to the images which appeared in AA’s online store. However, we considered that, where the images appeared on the home page and in the “Advertising” section of AA’s website, they were likely to be viewed by a wider audience. Nonetheless, we considered it was likely that ads (a), (b), (c), (e), (g), (h) and (i) were likely to cause serious or widespread offence wherever they appeared on AA’s website within the remit of the ASA. With regard to ad (d), we understood Crack Magazine was intended for an educated, mature, adult audience but nonetheless considered that the ad was likely to cause serious or widespread offence in a magazine that was untargeted and freely available in a range of locations including shops, hair salons and pubs.
Not upheld in relation to ad (f)
We considered the pose of the woman in ad (f) was only mildly sexually suggestive, and, in the context of the medium in which it appeared, it was not irresponsible or likely to cause serious or widespread offence.
Ads (a), (b), (c), (d), (e), (g), (h) and (i) breached CAP Code (Edition 12) rules
1.3
1.3
Marketing communications must be prepared with a sense of responsibility to consumers and to society.
(Responsible advertising) and
4.1
4.1
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.
(Harm and offence).
We investigated ad (f) under CAP Code (Edition 12) rules
1.3
1.3
Marketing communications must be prepared with a sense of responsibility to consumers and to society.
(Responsible advertising) and
4.1
4.1
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.
(Harm and offence), but did not find it in breach.
Action
Ads (a), (b), (c), (d), (e), (g), (h) and (i) must not appear again in their current form. We told AA not to use similar images which were exploitative of women or that inappropriately sexualised young women in future.
