As per the comments from Guy Parker, ASA Chairman, back in December 2020, with the horrifying death of George Floyd providing an inflection point for many organisations, the ASA began reviewing its decisions relating to ads depicting racial and/or ethnic stereotyping over the past 7 years to consider whether they were getting it right. His conclusion was broadly they were, but he noted there were some areas requiring further exploration.

Today, the Head of Casework at the ASA, Jane Eldridge, together with two ASA Complaints Executives  (Omolade Osonuga and Laura Brewster) as well as an ASA Council Member, (Aaqil Ahmed) held an insight session on their work so far on this project and a look forward.

To put this is context, the rules we are talking about CAP 4.1 or BCAP 4.2, are worded slightly differently, but essentially: ads must not cause "serious or widespread offence" with particular care needed to avoid offence on the basis of various protected characteristics e.g. race. These rules are applied by considering: context, how an ad is targeted i.e. audience and medium, what is being marketed and prevailing standards of opinion.

In the session, they took us through different decisions and their rationale in each case (some of the key cases are considered in my LexisNexis webinar (co-delivered with Ella Castle) as available here).

They identified 3 broad themes that they commonly see being raised in complaints:

1. Depiction and characteristics -  Common themes in terms of context were tone, and use of language or imagery which could reinforce a negative stereotype; the ASA noting of course that stereotypes of themselves, are not necessarily problematic. The decisions they referenced which were not upheld in most cases used stereotypes, but not, in the ASA's view, in a negative way or to mock, for example, in some cases they were factual to explain the good/service or distasteful without necessarily breaching the rules.
2. Objectification & sexualisation - as with stereotypes, they were keen to reinforce that depicting people in a sexual way isn't always problematic and neither is use of innuendo in a light hearted way. 
3. Culture & sense of humour  - the examples given were all about whether humour was based on race in a derogatory way or derived from mocking and whether it was likely to cause discriminatory treatment.  In particular use of (in many cases exaggerated) accents was a common theme.

Key considerations

They set out 5 key considerations they use in assessing ads, which aren't new, but which are always worth checking off as part of any ad sign off process:

1. Does the ad contain anything likely to cause serious or widespread offence particularly on the grounds of race or ethnicity?
2. How will viewers interpret the ad (i.e. context of ad itself not intention)?
3. Does it depict people in a demeaning way based on race or ethnicity?
4. Does it reinforce a negative stereotype?
5.  Is the humour used based on or derived from a person's race or ethnicity?

What's next?

The research, looking into attitudes towards racial and ethnic stereotyping, which Guy Parker noted back in December 2020, is still ongoing. In conducting this research, the ASA is, in particular, seeking to obtain the views of those the ads seek to portray.

Separately there is a call for evidence on depiction of these stereotypes in ads and a literature review to give context to their research.

As noted in the ASA's annual report, published last week: "This research will form part of a new evidence base to help us understand what more we need to do to address and prevent harmful racial and ethnic stereotypes in advertising, which could  contribute to real-life inequalities".

There was no timeline given but the above are clearly the first priority for the ASA. What was also mentioned was a consultation on the introduction of specific rules relating to harm and protected characteristics such as race. As things stand, the relevant provisions sit within the more general harm and offence rules. This latter consultation sounds quite a way off currently, but it will be an important moment for people and organisations to have their say.

Interestingly, during the session, the ASA conducted a number of polls of attendees as to their view on whether complaints should or shouldn't have been upheld before revealing the actual decision. What was striking was that whilst there were some ads where the majority had the same view, in most cases the results were split.  My recollection is that there was greater divergence in relation to more recent ads; certainly some of the earlier ads, from almost 10 years ago that were upheld, it feels hard to imagine that they would run now. 

Ultimately the codes and how they are enforced are intended to reflect public opinion and sentiment and no doubt as such, we are going to be seeing code changes.