Background
At the time the ad appeared, the trial of South African Olympic and Paralympic athlete Oscar Pistorius, for the alleged premeditated murder of his girlfriend Reeva Steenkamp, was due to begin in South Africa.
Ad description
An ad for a bookmaker, which appeared in The Sun on Sunday, included an image similar to an Oscar statuette, which had the face of the athlete Oscar Pistorius. Text stated “IT’S OSCAR TIME”, “MONEY BACK IF HE WALKS” and “WE WILL REFUND ALL LOSING BETS ON THE OSCAR PISTORIUS TRIAL IF HE IS FOUND NOT GUILTY”.
Issue
1. Complainants, who variously believed the ad was insensitive by trivialising the issues surrounding a murder trial, the death of a woman and also disability, challenged whether the ad was likely to cause serious or widespread offence.
2. The ASA challenged whether the ad brought advertising into disrepute.
Response
Paddy Power said the ad was a one-off and they therefore had no plans to repeat it. They said they had always focused on providing betting as entertainment. Although their marketing, which was known for being mischievous and irreverent, might push the boundaries on occasion, they did not intend to offend.
1. Paddy Power strongly believed the ad did not cause serious or widespread offence. They explained that “money back specials” (where bets on a particular outcome were refunded) regularly accompanied a new or interesting market however they were never indicative of the outcome of an event. They said they had in the past offered similar promotions for bets where the odds were such that customers were likely to receive their money back. Paddy Power said offering fixed odds betting on non-sports related events was not unusual, nor was it unlawful to take bets on the outcome of a legal trial. They said they had earned a reputation for offering markets on a wide range of non-sports related events and offering odds on the trial of Oscar Pistorius merely reflected the high level of international public interest in the story, rather than being a commentary on death or violence. They believed the number of complaints received about the ad also reflected media and public interest in the news story.
Paddy Power emphasised that there was no reference to death, or to any dead person, in the ad. They therefore believed it could not be said to cause offence in relation to death. While they acknowledged that the trial of Oscar Pistorius related to the death of Reeva Steenkamp, they said the ad deliberately made no reference to her, her death, violence or to any other such matter they might reasonably have believed would cause serious or widespread offence. Similarly, there were no graphics or imagery that related to the death of Reeva Steenkamp. They said they had taken particular care not to cause offence on those grounds in advertising the bet.
While Paddy Power accepted that there was a double meaning to “IF HE WALKS”, they pointed out that such references were frequently used in association with court cases. They said the very subtle reference to the fact Oscar Pistorius was a double amputee did not go so far as to cause serious or widespread offence but instead was an inoffensive and relevant play on words. Paddy Power said they had deliberately made no visual reference to Oscar Pistorius’s disability, so as not to cause offence on those grounds. They also explained that the company supported several sporting events that involved disabled athletes.
News Group Newspapers Ltd (The Sun on Sunday) said their commercial team were aware that the ad raised questions of taste and was therefore escalated to a senior editorial colleague prior to publication, in line with their normal procedure. They said a previous version of the ad had included a different image that was considered to be unsuitable for inclusion in the publication. However, it was decided on balance that the revised version was acceptable for publication in the sports section of the newspaper.
They said, while it was apparent the ad was intended to have an element of shock and to be talked about, they believed it would not cause serious or widespread offence to their readers who saw it in the sports section. They said the ad focused on a pun that related to Oscar Pistorius’s disability, and his potential acquittal, but made no reference to the woman who had died. They therefore believed the ad was not a direct reference to someone who was dead, which would cause offence or distress, in particular because the trial was taking place overseas. They had taken the decision to publish the ad in good faith and did not intend to cause offence to their readers. They said they regretted that offence had been caused, although no complaints had been received by them from readers, and they would ensure the concerns raised were taken into account in relevant future decisions.
2. Paddy Power said they treated the complaints seriously and emphasised that the ad had appeared for only one day in one newspaper in the UK. While no plans had ever existed for it to be repeated, they had acted promptly to confirm to the ASA that was the case and that the ad would therefore not be published again in the UK. They had been cooperative in responding to the complaints swiftly and had not led the public interest in the event but merely offered odds on something people were already talking about. In the context of such a high level of media coverage of the trial, Paddy Power believed it was unsurprising that complaints had been received. However, they strongly believed that offering a market on a leading news story did not trivialise the issues surrounding the murder trial, death or disability. They said the ad was a reflection of public interest, which was perhaps led by the media, and was not a commentary on death, violence or disability.
In relation to point 2, The Sun on Sunday said it understood a significant number of complaints about the appropriateness of the ad had been received by the ASA and that there was a question to be answered about whether it had caused widespread offence. They said it was, however, a highly subjective matter about which there were a range of views. They believed strongly that the ad, which was a one-off, did not bring advertising generally into disrepute.
Assessment
The ASA welcomed Paddy Power’s cooperation in responding promptly and their confirmation that the ad would not be repeated in the UK pending the outcome of the investigation, as directed by the ASA.
1. Upheld
We acknowledged that, while the bet offered was likely to be seen as distasteful by some readers, the ad was for a product we understood was offered legitimately. We also acknowledged that the ad made no explicit reference to death or violence.
However, we considered that by making reference to a high profile murder trial, the ad would be interpreted by readers as being inextricably related to the sensitive issues surrounding the trial, and to be making an implied reference to the person who had died. The CAP Code stated that references to anyone who was dead must be handled with particular care. We considered the ad, in particular the text “IT’S OSCAR TIME” and “MONEY BACK IF HE WALKS”, was likely to be interpreted as making light of the issues surrounding the trial, which included the death of a woman who had been shot by her boyfriend. We also considered the text “MONEY BACK IF HE WALKS” and “WE WILL REFUND ALL LOSING BETS ON THE OSCAR PISTORIUS TRIAL IF HE IS FOUND NOT GUILTY” was likely to be seen as making light of the serious decision making process involved in that trial. We therefore considered the ad went further than simply being in poor taste and that it was likely to cause serious or widespread offence by trivialising the sensitive issues surrounding the murder trial.
We acknowledged that the ad made no visual reference to Oscar Pistorius’s disability and that the reference “IF HE WALKS” would be understood to be related to the outcome of a criminal trial. However, we considered that text would also be understood by readers as a clear reference to Oscar Pistorius’s disability. We again considered the ad went further than simply being in poor taste and we were concerned that using the pun “IF HE WALKS” made light of disability. The CAP Code stated that particular care must be taken to avoid causing offence on the grounds of disability and we considered that the ad was likely to cause serious or widespread offence.
For the reasons given, we concluded that the ad breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
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.
and
4.3
4.3
References to anyone who is dead must be handled with particular care to avoid causing offence or distress.
(Harm and offence).
2. Upheld
We acknowledged that the ad had appeared in the context of a high profile murder trial that had received extensive media coverage and was of interest to the public. We considered it would therefore have been reasonable to foresee that serious or widespread offence was likely to be caused by placing an ad that sought commercial advantage based on that trial and which made light of the sensitive issues involved. Given the content of the ad, and the prevailing circumstances at the time of its publication, we concluded that it brought advertising into disrepute.
On this point, the ad breached CAP Code (Edition 12) rule 1.5 1.5 No marketing communication should bring advertising into disrepute. (Compliance).
Action
The ad must not appear again in its current form. We told Paddy Power to ensure their future ads did not cause serious or widespread offence and did not bring advertising into disrepute.
