Litigation annual review 2002: Pushing the boundaries in advertising

United Kingdom

2001 saw increasing attempts by advertisers to use "shock" tactics in advertising, pushing at the boundaries of taste and decency and also in relation to comparative advertising.

The most well known and, indeed, the most complained about advertisement last year was the billboard advertisement for Opium perfume, featuring a naked woman (the model, Sophie Dahl), lying on her back, set against a dark blue velvet back-ground. Complaints to the Advertising Standards Authority (" ASA") were on the basis that the image was offensive, degrading to women, and unsuitable for a public place. The ASA upheld the complaint, agreeing that the sexually suggestive nature of the pose meant that it was likely to cause serious or widespread offence when displayed on billboards. However, the image could still be used in glossy women's magazines and, indeed, could still be seen in magazines last Christmas, while road users remained protected from distraction. Using the advertisement in women's magazines was not considered a problem, since the risk of offence was significantly reduced.

The story of the Opium billboard advertisement was probably not one of unqualified failure, since the ban of the advertisement attracted substantial publicity. The downside is that Yves St Laurent are now subject to a two year period of compulsory vetting for their billboard advertisements.

This underlines the importance of careful targeting of advertisements, a factor apparent in a number of other ASA decisions over the year concerning advertisements using sexual innuendo. The general upshot of these decisions demonstrated that the more controversial a campaign, the more care must be taken to avoid the risk of a complaint. Complaints, of course, involve valuable management time, costs and the potential for adverse publicity. These risks can be reduced if care is taken over the placement of the advertisements so as to target an audience who will not be offended and to avoid (or at least substantially reduce) the risk of, particularly children, seeing any offensive material.

The other area which saw significant activity over the year related to comparative advertising. This has been one of the biggest growth areas over recent years, particularly since advertisers have increasingly sought to take advantage of Section 10(6) of the Trade Marks Act 1994. In effect, this provision allows the use of trade marks in comparative advertising, provided that the use of the trade mark is "in accordance with honest practices".

With the increase in the number of low-fare operators in the airline industry, airfares are a regular target for comparative advertising. This was certainly true over the last year. Of particular interest were two different examples, both involving Ryanair; one success for the airline and one failure.

The failure related to a successful com-plaint to the ASA, relating to a claim "We guarantee the lowest fares to Glasgow". Ryanair demonstrated that they carried out price comparisons on all routes, that they would reduce their fare to below the competitor's fare if one of Ryanair's fares was found to be more expensive, and that if a passenger found a lower fare after booking, Ryanair would refund double the difference. Nevertheless, the ASA noted that some air-lines offered prices lower than Ryanair on some comparable flights and, because Ryanair therefore did not offer the lowest fares at all times, concluded that the particular advertising claim could not be justified. Instead, Ryanair was advised to change its claim to state that it guaranteed to beat competitors' prices. The ASA, in reaching this conclusion, applied a very strict interpretation of the wording, seeking specific adherence to the wording of the claim. As recently as 9th January 2002, Ryanair was reprimanded again by the ASA over misleading claims in its advertisements.

A better outcome was achieved by Ryanair in High Court proceedings brought by British Airways in relation to a controversial campaign in which Ryanair described British Airways as "expensive BA**** DS" on the basis of their high prices. (A com-plaint from the public on the basis of this advertisement being offensive was upheld by the ASA). A later advertisement used the headline "expensive BA". Here, British Airways brought an action for both trade mark infringement and malicious falsehood. The Court made it clear it was considered inappropriate for two large companies to be fighting a comparative advertising dispute in the Courts and also inappropriate for British Airways to be claiming that the price comparisons were misleading when, in effect, their argument was that their fares were not five times more expensive than those of Ryanair, but only three times more expensive! The Court rejected the claim in relation to both trade mark infringement and malicious falsehood, following the robust view in relation to comparative advertising which has been adopted by the Courts in a number of previous cases.

Since these advertisements were published, the Control of Misleading Advertisements Regulations 1998, have come into force in the UK as a result of European legislation. These regulations set out a more stringent list of requirements for comparative advertisements, including a requirement that the advertisement must not discredit or denigrate the trade mark of a competitor. However breach of these regulations cannot be the subject of civil action, merely a com-plaint to the ASA and ultimately to the Director General of Fair Trading.

This shows the problem for companies in dealing with comparative advertising. The Courts are clearly reluctant to hear disputes of this nature and it will be difficult to succeed in bringing any claim before the Courts, except in the most extreme of circumstances. A complaint to the ASA or, if a television advertisement, to the ITC, may be more effective, although it can be difficult to predict the approach which the regulatory bodies will adopt. There is also no opportunity for any sanction on the offending advertiser, only the publication of an adverse finding on the ASA website and, possibly, some adverse publicity. Offending billboard advertisers may also, like Yves St Laurent, find themselves subject to the ASA requirement for compulsory prior vetting of billboards.

The extent to which the new regulations will have an impact on comparative advertising has yet to be seen, but there appears to be no sign yet of any clear impact or increased reference to the Advertising Standards Authority. It will also be interesting to see the different interpretation of the new rules across the European market, since a number of key aspects of the directive are open to different interpretations.

The other articles contained in the Litigation Review 2002 may be found on by clicking on ‘your latest information’ on our website www.law-now.com.  Alternatively, to access a PDF of the complete review please click here.

For further information on this article please contact the author Susan Barty by telephone on +44(0)20 7367 2542 or by e-mail at susan.barty@cms-cmck.com.

For further information on this review in general, please contact Tim Hardy on +44 (0) 20 7367 2533 or by e-mail at tim.hardy@cms-cmck.com.