On 21 September 2016, the ASA banned a sexually explicit ad for Luv2Chat, which promoted adult chat lines and was featured on the back page of an edition of the Sunday Sport published on 14 June 2016.

Irresponsible placement – inside or out?

This particular edition of the newspaper featured two Luv2Chat ads:

  1. The first ad was placed on an inside page of the paper and displayed several images of naked and partially naked women in sexualised poses, accompanied by sexually explicit text.
  2. The second ad was placed on the back page of the paper and displayed several images of women, who appeared to be removing their clothing, and were partially naked. These images were accompanied by phrases such as “XXX Sex Stories” and “Filthy Sex Chat with Hot TGirls“, which were less explicit than the phrases used in the first ad.

The ads received a complaint from the campaign group Not Buying It! who were concerned that they had been irresponsibly placed and would, as a result, be seen by children.

Uncensored ads vs. censorship of press

In response, Worldwide Digital Media, owners of the Sunday Sport, asserted that they regularly place similar ads in their newspaper and have never received a direct complaint as their customers are familiar with the sexual nature of some of their adverts.

They said that there was nothing in the ads that could reasonably be perceived to target children, and claimed that to “prohibit the ads from being placed in the newspaper, would be highly selective and restrictive, and would amount to censorship on the UK’s free press”.

Risk of exposure prevails

The ASA dismissed the ‘censorship’ claim and (partially) upheld the complaint – ruling that only the second ad (i.e. on the back page) breached rule 1.3 of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing which states that “marketing communications must be prepared with a sense of responsibility to consumers and to society“.

The ASA noted that although the newspaper was not specifically targeted at children – rather it was a paid-for newspaper directed at adult males – this does not necessarily mean that children wouldn’t be exposed to it. Given that the ads contained sexually explicit images accompanied with suggestive text, they would require careful placement in the publication to limit any risk that children would view them. Accordingly, the ASA considered that the first ad was not irresponsibly placed as children were unlikely to see it on the inside pages of the Sunday Sport.

However, since the second ad was placed on the back page, this increased the likelihood that children would see it, if, for example, “the paper was left in public places or around the house“. Similarly, the ASA noted that the Sunday Sport was usually displayed in retail stores alongside other newspapers in a readily visible position (as opposed to appearing on the top shelf, alongside arguably more explicit publications) meaning there is a higher risk that children would inadvertently be exposed to the newspaper.

As a result the ASA ruled that the ad be prohibited from the back page of the Sunday Sport, and, going forward, Worldwide Digital Media would not be allowed to place sexually explicit ads on the back page of any publications where they could be seen by children.

Location, location, location

As discussed previously in relation to public advertising on posters and billboards – it boils down to placement and risk of exposure. Whilst sexually explicit images and text were the subject of this particular ruling, given the ASA’s stance, publishers who intend on publishing material that could be deemed to be inappropriate for children must consider: (1) whether the material could be easily seen by children by way of its placement in the publication; and (2) whether the nature of the publication itself increases the likelihood that children would have access to it.

Written by Tobias Hawksley Beesley and Alessandra Cappuccini

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Tobias is an associate in our Intellectual Property Group based in London. Tobias has experience in a wide range of intellectual property matters, particularly across the media & entertainment and technology & communications sectors. He has been involved in a broad range of contentious and non-contentious intellectual property matters in relation to patents, trade marks, passing off, copyright and privacy. He has also worked on brand management matters for a number of clients, including advising a well known restaurant chain and a social media website on enforcement and filing strategy. His litigation experience has involved proceedings in the Intellectual Property Enterprise Court, Patents Court and Court of Appeal, in addition to working on an international arbitration for a world leading technology company.

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