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September 17, 2012
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High Court gives a reminder of how and when terms should be implied into contracts by the courts.
Government consults on UK’s implementation of Consumer Rights Directive.
Government consults on proposals to limit payment surcharges under Consumer Rights Directive.
Government and intelligence agencies advise UK’s most senior business leaders on how to tackle growing cyber threats to their companies.
PhonepayPlus publishes discussion paper on due diligence and risk assessment.
European Commission moves to foster wireless innovation through sharing of radio spectrum.
Coalition for a Digital Economy writes to the Prime Minister citing concerns arising from Government’s consultation on parental internet controls.
Government consults on the “midata programme”.
Information Commissioner’s Office publishes guidance on deleting personal data.
Ofcom extends pilot period during which websites can be referred to on air as acceptable routes for paid-for audience participation and interaction.
Ofcom finds transition to more adult material after watershed, including a sex scene and offensive language, not unduly abrupt.
PPL consults on draft Codes of Conduct for members and licensees.
PCC finds Heat’s “Fazer cheated” article about N-Dubz star in breach of Editors’ Code for “failure to take care” not to publish inaccurate or misleading information.
Newspaper Society says that proposed EU data protection reforms could “stifle innovation and threaten freedom of expression”.
Daily Mail’s “Free Jubilee DVD” ads found in breach of advertising rules because it was not clear that tokens had to be collected.
ASA finds Sky Store “rent movies instantly” ad misleading because it exaggerated the capabilities of the service.
ASA finds Madonna concert competition ad in association with Smirnoff not in breach of rules relating to alcohol and the under 18s.
High Court gives a reminder of how and when terms should be implied into contracts by the courts.
The case, a breach of contract dispute involving complex finance agreements, addressed the current uncertainty over the correct test for the implication of contractual terms. The defendant, UBS, exercised what the court held to be an express discretion under a deposit agreement. The claimant, SNCB, attempted to argue that certain terms should be implied into the agreement preventing the exercise by UBS of its discretionary power in the particular circumstances.
In reviewing the authorities, the court confirmed that terms should not be implied into a contract unless obvious or necessary for the relevant contract. The court has no power to improve upon the contract by making it more fair or more reasonable. Whether a term should be implied is a question of construction of the contract objectively ascertained, not a purpose to be derived from one party’s statements in negotiation, or a subjective view.
In particular, the court stressed that the various statements of principle to which Lord Hoffmann referred in Attorney General of Belize v Belize Telecom [2009] 1 WLR 1988 (to the effect that in order to be implied into a contract a term must: (i) be “reasonable or equitable” or “necessary to give business efficacy to the contract” or “so obvious that it goes without saying”; (ii) be “capable of clear expression”; and (iii) “must not contradict any express term of the contract”) are a distillation (and not a dilution) of the overriding principle that the proposed implied term must reflect what the contract would reasonably be understood to mean. As Mr Justice Cooke was at pains to point out in this case, Lord Hoffmann “was not in any way resiling from the often stated proposition that it must be necessary to imply the proposed term. It is never sufficient that it should be reasonable…”
SNCB sought to rely on Equitable Life v Hyman [2002] 1 AC 408, in which the House of Lords was prepared to imply a term into a policy for guaranteed annuity rates that a discretion to declare bonuses could not be exercised “in conflict with the contractual rights of the GAR policyholders”. In that case, Lord Steyn referred to the “reasonable expectations of the parties” and held that the implied term was essential to give effect to those reasonable expectations. But, as SNCB was forced to concede, by “reasonable expectations of the parties” Lord Steyn meant “the objective expectations to be spelt out from the contract itself and not the subjective expectations of either party”. The term can therefore be implied “only if it is necessary in the light of all the other provisions of the contract, against the same background admissible in construction, to reflect the real meaning of the contract”. Thus, once the court in the current case was satisfied that the contract expressly allowed UBS to exercise its discretion in the way that it did SNCB’s case was doomed, since the more sophisticated the contract the less likely it is that its express terms do not objectively reflect those reasonable expectations.
SNCB further weakened its case by pleading alternative and inconsistent implied terms, making it impossible to argue that any one of them was obvious or necessary. In addition, its failure to formulate a workable implied term at the start of the claim meant that it was subsequently seen to be reformulating the supposed term to deal with objections, working backwards from the result it was trying to achieve, rather than putting forward a true implied term (SNCB Holding v UBS AG [2012] EWHC 2044 (Comm) (20 July 2012) – to read the full judgment click here).
Government consults on UK’s implementation of Consumer Rights Directive.
The provisions in the Directive will apply, subject to some limited exceptions, to all contracts for sales of goods and services by traders to consumers including digital content, whether the transactions are within the UK or effected across EU borders. Article 19 of the Directive, on payment surcharges, is the subject of a separate consultation (see item below).
The Directive was agreed by all Member States of the EU in October 2011. The Government says that despite its name, the Directive does not aim to be all encompassing with regard to consumer rights. Rather, its aim is to “simplify and harmonise rules in a limited number of key areas, to encourage growth and raise consumer confidence in buying across borders”.
The Directive focuses on:
- ensuring transparency of information, in particular with regard to pre-contractual information for distance and off-premises contracts (but also for other goods and services contracts);
- cancellation rights for distance and off-premises contracts;
- ensuring there is express consent from the consumer for any additional payments;
- prohibiting excessive fees for paying the trader (this provision is the subject of a separate consultation to effect early implementation); and
- prohibiting excessive phone charges for consumers contacting traders about existing contracts.
The Directive also updates legislation to clarify the cancellation rights and obligations of buyers and sellers of digital products.
The Government notes that the harmonisation aims of the Directive mean that the majority of provisions must be implemented as described and Member States do not have flexibility with regard to their application to sectors within the scope of the Directive. The proposals in the consultation therefore highlight those areas where the UK does have flexibility.
In addition, the consultation seeks views on:
- whether there are provisions within the Directive that may be ambiguous;
- areas of the Directive where business and consumers would benefit from additional clarity; and
- the financial impacts, both costs and benefits, that the changes in the Directive will bring.
To read the Government’s press release in full and for a link to the consultation, click here.
Government consults on proposals to limit payment surcharges under Consumer Rights Directive.
The consultation covers those additional charges that businesses add to the price of goods or services when the consumer chooses to pay by a particular method, for example by using a credit card or a debit card – known as payment surcharges.
The consultation sets out the Government’s proposal for early implementation of Article 19 of the EU’s Consumer Rights Directive. This will put in place legislation to ban businesses from imposing excessive payment surcharges on consumers. Businesses will remain able to add a charge only insofar as it covers the actual costs of processing any particular form of payment. The consultation seeks views on the timing of the implementation of this legislation and how best to define the scope and application of the provision. To read the Government’s press release in full and for a link to the consultation, click here.
Government and intelligence agencies advise UK’s most senior business leaders on how to tackle growing cyber threats to their companies.
The Government says that currently too few company chief executives and chairs take a direct interest in protecting their businesses from cyber threats. Accordingly, the Government and intelligence agencies have launched Cyber Security Guidance for Business, which directly targets the most senior levels in the UK’s largest companies and provides them with advice on how to safeguard their most valuable assets, such as personal data, online services and intellectual property.
Business Secretary Vince Cable said: “Cyber security threats pose a real and significant risk to UK business by targeting valuable assets such as data and intellectual property. By properly protecting themselves against attacks companies are protecting their bottom line. Ensuring this happens should be the responsibility of any chief executive or chair as part of an approach to good corporate governance which secures a business for the long-term”.
Home Secretary Theresa May said: “Cyber crime is a serious problem which affects businesses of all sizes and can have devastating consequences. That is why we have funded the expansion of the Police Central e-Crime Unit in the Metropolitan Police and SOCA’s Cyber Unit, and established three regional cyber specialist hubs to help combat the threat. We will build on this by introducing a dedicated cyber crime unit in the new National Crime Agency”. To read the Government’s press release in full and for a link to the guidance, click here.
PhonepayPlus publishes discussion paper on due diligence and risk assessment.
One year on from the implementation of the twelfth edition of the PhonepayPlus Code of Practice on 1 September 2011, the premium rate services regulator has set out some thoughts for discussion about due diligence and risk assessment based on its experiences over the last 12 months.
PhonepayPlus says that the aim of the new approach to regulation was to offer the sector a new concise:
- outcomes-based Code with fewer rules;
- lighter level of intrusion for minor breaches through an informal resolution process; and
- targeted regulation bearing down more heavily on the “polluters” rather than the intermediaries.
This was “in return for tighter standards of due diligence and risk assessment amongst networks and aggregators to keep the most persistent and obvious offenders out of the market”, it says.
PhonepayPlus says that the discussion paper points to some “positive signs”, but “more will need to be done lest those who have made that shift believe that they suffer at the hands of those who continue as before”. PhonepayPlus says that it is therefore at a “critical point in our journey towards implementing the new regulatory framework”. There is a chance of working with industry to engender a step change in compliance and trust, it says, but if that does not achieve results, the alternative will be “a continued ratcheting-up of investigations, sanctions, fines and the overall cost of regulation”. To read the PhonepayPlus press release in full and for a link to the discussion paper, click here.
European Commission moves to foster wireless innovation through sharing of radio spectrum.
The Commission has unveiled plans to deal with the exponential growth in mobile and wireless data traffic by enabling wireless technologies, including broadband, to share the use of the radio spectrum.
The Commission says that with new technologies it is possible to share radio spectrum amongst several users, such as internet providers, or use the spectrum available between TV frequencies, for example, for other purposes. According to the Commission, national spectrum regulation often does not reflect the new technical possibilities, leaving mobile and broadband users at risk of poor service as demand grows, and preventing a single market for investment in such communications markets.
The Commission sees a need for a coordinated European approach to sharing spectrum to create greater mobile network capacity, cheaper wireless broadband, and new markets such as tradable secondary rights for a given spectrum allocation. Accordingly, it is calling for:
- Regulators to support wireless innovation by monitoring and potentially extending the harmonised internal market bands in which no licence is required (so-called licence-exempt bands) through appropriate measures; and
- Consistent regulatory approaches across the EU for shared rights of use that give incentives and legal certainty to all users (current and new) who can share valuable spectrum resources.
Commissioner Neelie Kroes, responsible for the Digital Agenda, said: “Radio spectrum is economic oxygen, it is used by every single person and business. If we run out of spectrum then mobile networks and broadband won’t work. That is unacceptable, we must maximise this scarce resource by re-using it and creating a single market out of it. We need a single market for spectrum in order to regain global industrial leadership in mobile and data, to attract more R&D investments”. To read the Commission’s press release in full, click here.
Coalition for a Digital Economy writes to the Prime Minister citing concerns arising from Government’s consultation on parental internet controls.
COADEC, together with other concerned groups, has written to the PM highlighting in particular its concerns over the potential of “overblocking” if new parental internet controls are brought in. They ask the PM to ensure that all the evidence resulting from the consultation is looked at. Further, they say, the issue has already been looked at by two in-depth reviews, the Byron Review and the Bailey Review, which both arrived at the same conclusion – that parents are in the best position to decide what their children can see.
The letter makes the argument that default blocking is not the way forward and that, instead, the development of better parental control filters and advisory services should be encouraged so that parents have the correct tools to protect their children online and educate them on how to use the internet responsibly. To read the letter in full, click here.
Government consults on the “midata programme”.
The consultation proposes introducing a power that, if exercised, would give new rights to consumers to access their personal transaction data in an electronic, portable and machine-readable format.
midata was launched in April 2011 as part of the Government’s consumer empowerment strategy, Better Choices: Better Deals. The programme is a partnership between the UK Government, consumer groups and major businesses and is aimed at giving consumers access to the data created through their household utility use, banking, internet transactions and high street loyalty cards.
The Government says that allowing people to access and use this personal data “has the potential to open up a wealth of opportunities for consumers and businesses, promoting growth across the wider economy”.
The Government says that since the programme was launched, “important progress has been made”. Participants have agreed core principles about data release, published research into customer attitudes and begun work on important questions of privacy and security. However, the Government believes that the “significant advantages on offer for consumers and the economy” mean that faster progress to achieve midata’s vision is needed.
The consultation explores the option of taking an order-making power to ensure Government has the flexibility to act if the voluntary approach proves too slow. The Government is seeking information to ensure an effective implementation of midata that will remain relevant in the future. Further consultation would be needed before the power could be exercised through secondary legislation.
Consumer Minister, Norman Lamb said: “It’s clear to me that giving consumers the right to access their own transaction data promises huge opportunities for both consumers themselves and UK businesses. midata will allow consumers greater insight into their everyday consumption and lifestyle habits by using applications and intermediaries to analyse their actual behaviours and thereby empower them to make better spending choices and secure the best deals. This will boost competition between companies in terms of value and service, and stimulate innovation in new data management tools and systems”. To read the Government’s press release in full and for a link to the consultation documentation, click here.
Information Commissioner’s Office publishes guidance on deleting personal data.
The guidance sets out how organisations can ensure compliance with the Data Protection Act 1998, in particular the fifth data protection principle, when archiving or deleting personal information. It also sets out what the ICO means by deletion, archiving and putting personal data “beyond use”.
The fifth data protection principle states that: “personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes”.
The ICO’s Personal Information Online Code of Practice says: “It is good practice to make it clear to people what will happen to their information when they close their account – i.e. if it will be deleted irretrievably or simply deactivated or archived. Remember that if you do archive personal data, the rules of data protection, including subject access rights, still apply to it. If you offer users the option to delete personally identifiable information uploaded by them, the deletion must be real i.e. the content should not be recoverable in any way, for example, by accessing a URL from that site. It is bad practice to give a user the impression that a deletion is absolute, when in fact it is not”.
The guidance states that organisations should be “absolutely clear with individuals about what they mean by deletion and what actually happens to personal data once they have deleted it”. The purpose of the guidance is to counteract the problem of organisations informing people that their personal data has been deleted when, in fact, it is merely archived and could be re-instated. It is also intended to encourage organisations to put safeguards in place for information that has been deleted but is still in fact in that organisation’s possession.
However, the ICO says that it will “adopt a realistic approach in terms of recognising that deleting information from a system is not always a straightforward matter and that it is possible to put information ‘beyond use’, and for data protection compliance issues to be ‘suspended’ provided certain safeguards are in place”. To read the guidance in full, click here.
Ofcom extends pilot period during which websites can be referred to on air as acceptable routes for paid-for audience participation and interaction.
The pilot period allowing web-based routes for paid participation in viewer voting schemes and competitions to be referred to on air was due to end on 20 August 2012 but will now end on 19 August 2013. The pilot period was intended to offer an opportunity to test a potential relaxation of Rule 9.26 of the Broadcasting Code which currently prohibits paid interaction with programmes other than by “means of premium rate telephone services or other telephony services based on similar revenue-sharing arrangements”.
The extension comes because the very limited use by broadcasters of the greater freedoms for audience participation and interaction provided by the pilot period is not a sufficient basis to allow proper re-consideration of Rule 9.26. In a Note to Broadcasters published on 13 August 2012, Ofcom reiterates the terms of the pilot period explaining that:
- The pilot period applies only to audience voting and competition schemes – it therefore does not allow on air references to websites as a means for paid-for audience interaction with or participation in programmes for any other reasons such as advice from a studio guest, submitting comments or views on news stories or taking part in TV call-ins.
- PRS means of entry must be one of the routes available, and third party verification therefore applies across all available routes.
- Provided these conditions are met, self-standing websites or apps downloadable to mobile phones and related devices, or both, may be referred to on air as means for viewers to vote or submit competition entries, subject to other relevant Code rules.
The Note also reminds broadcasters that websites, apps and mobile devices are proprietary communication tools whose branding and web addresses amount to “products” under Ofcom’s rules (as opposed to generic means of communication such as the public telephone network) and that as such, they must ensure that references to proprietary properties are not promotional or unduly prominent (in the context of voting shows and competitions) and must comply with Rules 9.1 to 9.5 (Commercial References in Television Programming) of the Code. To access Ofcom’s Note to Broadcasters published in Issue 211 of the Broadcast Bulletin (13 August 2012), click here.
Ofcom finds transition to more adult material after watershed, including a sex scene and offensive language, not unduly abrupt.
Episodes of the US drama series Homeland broadcast on Channel 4 at 8pm on 4 March 2012 and 8 April 2012 attracted complaints from a viewer because they featured a sex scene at the start of the programme and contained two uses of offensive language during the opening titles.
Ofcom found that the sex scene in context had sufficient editorial justification because it was linked to the plot, was brief and was filmed in long and mid shot with no nudity below the waist. Ofcom also considered that it did not exceed audience expectation because previous episodes had featured strong sex scenes and the programme was preceded by a clear warning. As such, Ofcom concluded that the transition to more adult material after the watershed was not unduly abrupt.
In relation to the repeated use of the most offensive language in the opening titles, Ofcom found that because it was almost inaudible in nature and because the language was not broadcast in a simple linear narrative but in a fractured montage of sounds, the potential for offence was lessened and there was no breach of Rule 1.6 of the Broadcasting Code.
Ofcom nonetheless reminds broadcasters that Rule 1.6 is designed to avoid a sudden change to more adult material that would only be deemed suitable for a post-watershed broadcast. In particular, Ofcom reiterates that it will only consider the use of the most offensive language in opening title sequences broadcast after the watershed to comply with the Code in exceptional circumstances and discourages the practice. It also warns broadcasters that where the material is an acquisition that is originally broadcast on a pay-per-view channel in America, as it was in this case, they must take all necessary measures to comply with the Code and find a way round the potential difficulties in editing out strong language from opening titles even if the dramatic impact suffers a little in the process. To read Ofcom’s adjudication on Homeland published in Issue 211 of the Broadcast Bulletin (13 August 2012), click here.
PPL consults on draft Codes of Conduct for members and licensees.
PPL, the UK licensing body for recorded music working on behalf of record companies and performers, is planning to introduce a Code of Conduct for its licensees and prospective licensees and a Code of Conduct for members and prospective members. The Codes will be introduced in November 2012.
The draft Codes, based on the set of Principles for Collective Management Organisations’ Codes of Conduct published by the British Copyright Council, set out information about PPL (and how to find out more) as well as information as to what licensees and members can expect from the organisation. PPL is now inviting comments from interested parties, including in particular existing, new and prospective licensees and members (and their representative bodies). To access the draft Codes and the consultation documentation, click here.
PCC finds Heat’s “Fazer cheated” article about N-Dubz star in breach of Editors’ Code for “failure to take care” not to publish inaccurate or misleading information.
The article featured an interview with a woman who said she had met the complainant, rapper Richard Rawson (aka “Fazer” of British hip hop group N-Dubz) in a nightclub in November 2011; that the two had danced and kissed; and that the complainant had denied having a girlfriend. At the time, the complainant had been in a relationship about which he had spoken publicly.
The complainant accepted that he had spoken to and danced with the woman, but strongly denied kissing her or telling her he did not have a girlfriend. He also considered that even had the claim of kissing been accurate, the reference on the cover to “cheating” would be misleading, as it implied sexual intercourse. Heat was confident of the accuracy of the article.
The PCC was unable to reconcile the two conflicting versions of what had occurred and concentrated on whether the magazine had taken care not to publish inaccurate or misleading information. The PCC noted that the article had been highlighted on the magazine’s cover, with the claim that the complainant had “cheated”. While it did not agree that “cheating” necessarily implied a claim of sexual intercourse, the PCC said that the allegation of infidelity was significant. It noted that the magazine had published detailed claims about the complainant, including that he had been deceptive and unfaithful to his girlfriend. Although the magazine had taken a witness statement from the woman prior to publication and had obtained a further statement from the journalist, the PCC noted that it was unable to provide direct corroborating evidence, such as a photograph, of the kiss.
In the circumstances, which included the nature of the allegations and the prominence given to them, the PCC concluded that the magazine’s decision not to contact the complainant’s representative about the story prior to publication represented a failure to take care not to publish inaccurate or misleading information, and was a breach of Clause 1.
A complaint under Clause 3 (Privacy) was not upheld since the photographs had been taken on the dance floor of a publicly accessible and busy club, which had been hosting a launch party and designated press night that evening. To read the PCC adjudication on Richard Rawson (also known as “Fazer”) v Heat (14 August 2012) in full, click here.
Newspaper Society says that proposed EU data protection reforms could “stifle innovation and threaten freedom of expression”.
In its submission to the Justice Select Committee enquiry into the proposed EU data protection Regulation, the Society argues that the Commission’s proposals will place “unnecessary and unjustifiable additional regulatory and ‘red tape’ burdens on businesses, create uncertainty both for businesses and consumers, stifle innovation and development and could even impact upon editorial freedom of expression”.
The Society’s submission points out that: “New online business models, from digital subscriptions via advertising in the digital press to e-commerce, are indispensable for the press”.
The submission also states that: “The widened and legally uncertain definitions of personal data, the enhanced requirement for consent, the restrictions upon profiling, the right to be forgotten and the onerous requirements for compliance and notification, all have the potential to adversely affect newspapers’ vital advertising and marketing services as well as their sales and subscriptions practices”.
The Society has also raised “strong concerns” about what it considers to be the “inadequately robust exemption in the draft Regulation for journalistic activities”. The Society says that this is “all the more vital given the proposed introduction of a ‘right to be forgotten’“. According to the Society, the present wording of Article 80 refers to processing carried out “solely” for journalistic purposes, which could provoke a “narrow interpretation” whereby processing carried out for a dual purpose was not exempted: “If this were the case, the impact of the ‘right to be forgotten’ in particular, as well as other subject rights, upon newspaper electronic archives and on other publishing activities (e.g. commercial syndication or licensing of content) would have a potentially huge economic impact – as well, of course, as a equally detrimental impact upon freedom of expression and freedom to impart/receive information”. To read the Society’s press release in full, click here.
Daily Mail’s “Free Jubilee DVD” ads found in breach of advertising rules because it was not clear that tokens had to be collected.
A TV ad featured a voice-over which stated, “Free with Saturdays [sic] Daily Mail, the very best of the Jubilee on one spectacular DVD”. On-screen text stated “Collect tokens from Mail and Mail On Sunday. Postage payable allow 56 days for delivery”.
A press ad stated “FREE DVD Best of the Jubilee celebrations WITH SATURDAY’S Daily Mail”.
Associated Newspapers said that the use of the wording “free with” rather than “free in”, along with the inclusion of the word “offered” made it clear the DVD was not contained within the newspaper but accepted that one of their press ads had not stated that the offer required consumers to collect tokens. Clearcast did not feel the qualifying text in the TV ad contradicted the free claim as the DVD was in fact free.
The ASA noted the use of “with” rather than “in” but did not believe it was a sufficiently clear distinction particularly when the Saturday edition of the newspaper was referred to in isolation. It acknowledged the on-screen text provided further details of how the offer worked, but considered that the qualifying text contradicted the claims in the voice-over.
The ASA also considered that consumers could have seen the relevant press ad in isolation and decided to purchase Saturday’s Daily Mail as a result, without being aware that they would be required to collect tokens in order to obtain the DVD. It therefore concluded that the ad was misleading. Accordingly, the TV ad breached BCAP Code rules 3.1 (Misleading advertising) and 3.10 (Qualification) and the press ad breached CAP Code rules 3.1 (Misleading advertising), 3.9 (Qualification) and 8.17.1 (Significant conditions for promotions). To read ASA Adjudication on Associated Newspapers Ltd (29 August 2012) in full, click here.
ASA finds Sky Store “rent movies instantly” ad misleading because it exaggerated the capabilities of the service.
A press ad for a Sky movie rental service stated “Rent movies instantly through your Sky+ box”. Small print text included “Sky Store: Compatible black Sky+/Sky+HD box with a fast enough Broadband connection”.
In response to BT’s complaint that the ad misleadingly exaggerated the speed with which consumers could use the service, Sky said that the large majority of those with ADSL broadband would be able to start watching a movie within a minute and that customers would understand the words “rent movies instantly” to mean that they could begin viewing within seconds, as opposed to minutes. Sky also said that consumers understood that services provided over the internet would be affected by the speed of their broadband connection and pointed out that the small print had emphasised that a “fast enough broadband connection” was required.
The ASA noted Sky’s response, but considered that a delay of up to a minute for most customers (and longer for those with slower broadband connections) would not be in line with their reasonable expectations for an online movie service which was described as “instant”. It therefore considered that the ad had exaggerated the capabilities of the service and concluded that it was likely to mislead. Accordingly, the ad breached CAP Code rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.11 (Exaggeration). To read ASA Adjudication on British Sky Broadcasting Ltd (29 August 2012) in full, click here.
ASA finds Madonna concert competition ad in association with Smirnoff not in breach of rules relating to alcohol and the under 18s.
The adjudication concerned a TV ad which promoted a competition to win VIP passes to a Madonna tour, in association with Smirnoff vodka. The voice-over stated “Get the Smirnoff Limited edition pack and you could win VIP access to Madonna’s next tour. Madonna’s MDNA, available now everywhere”. The ad featured shots of individual dancers followed by scenes from a Madonna performance. The ad also featured a shot of the limited edition Smirnoff bottle and box.
Responding to a complaint that the ad was harmful and irresponsible because it would appeal to those under 18, the ASA accepted Madonna’s status as a globally successful pop artist who collaborates with a number of younger artists and acknowledged the longevity of her career and her established celebrity status. However, because the advertiser, Diageo, provided evidence to show that only 4.7% of 12 to 17-year-olds in the UK were defined as Madonna fans, and because the shots of the concert, the dancers and the Madonna soundtrack used would not have particular resonance with younger audiences, the ASA concluded that the ad was not targeted at, or likely to appeal to, those under the age of 18. Furthermore, the ASA noted that the ad did not feature any individuals that appeared to be below the age of 25 and that no alcohol was consumed. Accordingly, the ASA found the ad not in breach of BCAP Code rules 4.1 (Harm and offence) and, 19.15.1 and 19.15.2 (Rules that apply to alcohol advertisements). To read the ASA Adjudication on Diageo Great Britain Ltd (15 August 2012) in full, click here.
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