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 CAP Code states that ads should not portray anyone in an “adverse or offensive way”. This particularly applies to depictions of people who do not have public profile.

This rule is in Section 6 (Privacy) of the Code:

6.1          Marketers must not unfairly portray or refer to anyone in an adverse or offensive way…

Exceptions to the rule

The rule states several exceptions to this prohibition:

  • "unless that person has given the marketer written permission", or
  • If the references “accurately reflect the contents of a book, an article or a film”, or
  • “if the marketing communication contains nothing that is inconsistent with the position or views of the featured person”

The ASA is likely to ask the following questions when assessing if an ad breaks this rule:

  1. Did the person the ad refers to give their permission?
  2. Do they have a public profile?
  3. Does it accurately reflect the content of a book, article, or film about them?
  4. Is the portrayal consistent with their publicly stated views or positions?

It is advisable for advertisers to consider these questions when preparing their ads. 

The specifics of the ad

The ASA will assess the answers to these questions alongside the specifics of the ad.  Tone and language matters as much as whether or not an ad refers to an incident someone was involved in.

If a person with a public profile has been involved in a crime or embarrassing incident, they might object to ads that refer to this. But these references would not automatically breach this rule. Instead, the ASA’s decision would depend on the specific way in which the ads refer to those incidents.

Referring to people who are dead

If the person an ad refers to is no longer alive, ads must still avoid causing offence or distress.

This rule is stated in Section 4 (Harm and offence) of the Code:

4.3          References to anyone who is dead must be handled with particular care to avoid causing offence or distress.

So, a person's death does not make them 'fair game' for referring to them in an offensive or distressing way.

Use of humour

The use of humour or a light-hearted tone can sometimes make ads more offensive, rather than less.

The ASA ruled on a Paddy Power ad that referred to the athlete Oscar Pistorius (Paddy Power, 19 March 2014). This included the line “MONEY BACK IF HE WALKS”. The ASA considered consumers were likely to see this as making light of the athlete's disability and the death of a Reeva Steenkamp. The ad’s apparently light-hearted reference to these topics was one of the reasons it breached the Code.

Another ad that referred to the serial killer Fred West, alongside a Father’s Day discount, breached the Code (ITAE Productions Ltd, 10 August 2022). The ASA considered that the Father's Day reference would be understood as referring to Fred West's abuse and murder of one of his daughters. It considered that the ad’s flippant tone trivialised and made light of distressing and serious crimes.

As in the previous example, the ASA considered the ad less compliant because of its tone, rather than more.

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