Prank-vertising: when lawyers don't want you having (too much) fun

I give up. I really do.

To be honest, I am minded to start throwing a Basil Fawlty-esque wobbly involving tree branches, an old Morris Traveller and—to add a modern touch—a GPS sat nav; although frustratingly I've not worked out what to do with the sat nav yet (It'll come to me).

Simply put: does the advertising industry really need to fashion yet another term?

I have only just got used to understanding the black arts of astroturfingsock puppetry and flogging and now we have the following terms or 'mash-ups' ('mash-up': another word to dislike. Bah humbug):

  • prank-vertising
  • prankvertising, or
  • prank advertising

Let's just call it 'PV'. I need to save my fingers from typing and my spell-checker from getting unduly offended by these new terms.

Essentially, PV is where advertisers (desperately) try to break through the din of modern advertising by engaging in japes or pranks. In legalese, this is where an advertiser tricks someone and thereby causes the victim to experience embarrassment, distress and/or discomfort for the purposes of selling goods and services.

If you want some examples, have a look at yesterday's Guardian. It sets out the shenanigans that advertisers have got up to in the recent past which include: staging a fake meteor attack (as you do); pretending that a murder has taken place in a lift (nice); and, my favourite, tricking airport passengers into thinking they are wanted fugitives (a very common way of selling 'stress protect' deodorant—in Germany anyway).

Hilarious.

Well, no. The Advertising Standards Authority (ASA) certainly does not always think so.

By way of example, the Metronome Group got itself into a pickle with the ASA in 2009 when advertising the urban thriller film: Shifty. It created a 'Stitch up a mate' promotion in which people could enter a friend's e-mail address into the website. The unsuspecting friend then received this alarming e-mail:

In a recent operation a subject was arrested with a quantity of class A drugs in their possession. During the post arrest interview the suspect supplied your name to us as a habitual narcotics user. As such you are now at risk of a criminal prosecution based on the information supplied. However, as part of the Community Drugs Team initiative we are attempting to work with and help people who may have issues with drug use. Under this new initiative it may be possible to prevent further investigation if you are willing to participate in the newly launched ACT AGAINST DRUGS campaign, and submit to counselling and weekly drug testing. If you wish to participate please click on the link below to arrange a date, time and location for your initial interview and first weekly test [the website www.community-drugs-team.org.uk was given]. If you feel information has been wrongly supplied or wish to appeal against this notice click on the link below [the same website address was given]. If you fail to respond to this email within 7 days of receipt please be aware that this will then become an official matter and there will be a strong likelihood of criminal investigation. It is our aim to help you in the most discreet way possible, however we will require your full co-operation

The ASA was distinctly unimpressed.

In its ruling on the sales promotion, it said that,

The ad was irresponsible and could cause serious distress

It breached numerous clauses of the CAP Code (as in force at that time).

In the latest version of the CAP Code (Edition 12 which came into force on 1 September 2012), clause 4.2  makes it pretty clear that,

Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention

The key word here is 'justifiable'.

What is justifiable depends on a number of factors including who the sales promotion is aimed at. In any event, advertisers and lawyers would certainly be wise to tread very carefully here; not only because sales promotions involving pranks sail alarmingly close to the wind as far as the CAP Code is concerned, but advertisers could also find themselves at the receiving end of a negligence claim should the worst happen. All bets are off if somebody gets injured.

And I've not even mentioned the Unfair Commercial Practices Directive—well, apart from in this sentence just now. That will have to be for another time.

With the increasing convergence of media platforms, perhaps the ASA could take a leaf out of Ofcom's book and start providing for specific guidance in this area?

For example, broadcasters must comply with specific rules on pranks in the Ofcom Broadcasting Code which state in particular:

where there is no adequate public interest justification, for example some unsolicited wind-up calls or entertainment set-ups, consent should be obtained from the individual and/or organisation concerned before the material is broadcast

If you are a 'sleb' (celebrity), your rights are even less:

material involving celebrities and those in the public eye can be used without consent for broadcast, but it should not be used without a public interest justification if it is likely to result in unjustified public ridicule or personal distress.

In conclusion, it is abundantly clear that advertisers should not indulge in PV unless they use a massive dollop of common sense and receive robust guidance from their legal teams. 'Any PR is good PR' doesn't quite cut the ice here, particularly if you have been named and shamed by the ASA; can't use Royal Mail's bulk mail discount when running a direct marketing campaign; and have given your customers unwanted psychiatric disorders.

Sorry, folks, the upshot is that lawyers have banned most pranks.

So what are your views on all of this tom-foolery? *Said in an unfeasibly clipped 1950's-style BBC voice* Do let us know below. We look forward to hearing from you!

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