It is generally accepted that “sex sells”. It has also been claimed that “no publicity is bad publicity”, an idea floating around at least since 1890 when Oscar Wilde observed: "there is only one thing in the world worse than being talked about, and that is not being talked about". Combining these concepts often results in ‘shockvertising’ to create campaign ‘buzz’. However, with the world seemingly eager to hit the ‘cancel button’ at any given moment, we wanted to help clarify the UK rules around using sexualised imagery in advertising.  

In a recent ruling, the UK's Advertising Regulator (the ASA) found that an advert for Demi Lovato’s latest album "HOLY FVCK" caused "serious and widespread offence". The advert featured the name of the album alongside images of Ms. Lovato in a bondage-style outfit reclining on a large, crucifix-shaped cushion. The advert was also found to have been targeted irresponsibly, with copies having been placed where children were likely to see them. In addition, the ASA found that the ad was likely to cause serious offence to Christians by linking a symbol of the crucifixion to sexuality. The ad was banned by the ASA, and the artist’s record label was warned not to cause widespread offence in the future.

Fashion brands too are known for "performance piece" campaigns, often featuring provocative and shocking advertising images (an interestingly similar example being French Connection UK launching their FCUK acronym with the slogan "FCUKinkyBugger" in the early 00s). It can feel as if there is a fine line between ‘attention-grabbing’ and ‘offensive’ and the ASA is clear that the CAP Code is not necessarily breached just because some individuals are offended. But where exactly does this line start and how can brands ensure that they remain on the right side?

The basic UK rule is that advertisements must not “contain anything that is likely to cause serious or widespread offence” (CAP Code Rule 4.1). Advertisers will be relieved to note that sexualised imagery is not automatically deemed to cause offence. However, there are general areas to consider when assessing if “serious of widespread offence” will be caused:

• Offending specific groups - including those of a particular "religion or belief", "sex or sexual orientation" and "gender" among others. Similarly, innuendo that is used to demean a particular group is likely to be deemed by the ASA to cause offense;
• Sexual depiction of under 18s - including those who look under 18, is prohibited (this was increased from under 16s in 2018);
• Non-product related images – sexualised images in advertising for a fashion-brand are more likely to be acceptable than for patio furniture, the latter spills into ‘objectification’ which the ASA deems to be likely to cause offense; and
• Untargeted ads - what is suitable for adult viewing, will not be suitable for children and what is suitable for subscribers to a lingerie brand will not necessarily be suitable for the general public. Overly or explicitly sexual imagery is prohibited in outdoor, untargeted media (see for example the recent ruling against F&P GmbH, which involved outdoor ads for an online sex community, featuring people “wearing minimal clothing”); and images that are sexually suggestive must carry a placement restriction, so they do not appear within 100 metres of a school.

As well as considering their reputation, brands will need to consider the nuanced legal factors that apply if opting to use sexual imagery in their advertising. The categories above are the tip of the iceberg when it comes to the ASA’s position (which often changes to reflect society’s priorities; enforcement against adverts deemed to objectify women, for example, has increased hugely over the last ten years). To assist with this process, we have produced the flow-diagram below. This outlines in more detail the key concerns raised above. This is not a complete guide, nor should it be taken as legal advice; should you have concerns about specific content, we recommend speaking to your legal advisors.

Flowchart: Using sexualised images

In general, advertisements must not “contain anything that is likely to cause serious or widespread offence” (CAP Code Rule 4.1). Sexual imagery is not automatically deemed to cause offence, however it “must not be used in a way which is likely to cause serious or widespread offence”. This is a difficult line to tread,¹ as what is offensive can be very subjective. However, for brands who advertise to a large number of people, there are objective requirements that should be followed to ensure that any sexual imagery is: (i) generally appropriate; and (ii) seen only by an appropriate audience.

Footnotes

1. Even if some advertisers get it so unbelievably wrong. In August 2021 the ASA upheld a decision against an advertiser (Rangosious Public Holdings Ltd) who (in an untargeted advertisement) showcased a game mechanic where a player removed clothing from a sleeping woman, both showing the woman as an unresisting character, for players to manipulate without consent, and stereotyped the woman by presenting her as a sexual object and condoned removal of the woman’s clothing without consent. In April 2022, in-game ads by OneSoft Studio appeared in the Scrabble game app. They featured an animated woman crying and struggling to escape from a fence, with various options presented to the viewer including HELP, SLAP and UNDRESS. The ASA upheld complaints for trivialising and condoning sexual assault, encouraging sexual violence, and including a gender stereotype.
2. The rules apply irrespective of whether the person depicted is real or animated. A September 2022 decision (Oasis Games Ltd) held an ad which featured a sexualised anime-style young-woman with “a long, bushy tail and rabbit-like ears” was likely to cause serious or widespread offence,  included a gender stereotype, portrayed someone who seemed to be under 18 in a sexual way, and was socially irresponsible. The ASA stated that despite the fantastical augmentation, the sexualised image “still recognisably represented a young woman or girl”. Similarly, ‘merpeople’ (see Ambassador Marine Ltd) and other imaginary creatures are also likely to be caught. However, in an October 2020 decision, the ASA refused to uphold complaints against a Misguided advert which featured a model wearing a crop top featuring the Playboy Bunny logo. They said that whilst the model looked youthful and there was an association with Playboy magazine, she did not appear under the age of 18, nor was she depicted in a sexual way.
3. A November 2022 ASA decision (Great Grass MCR Ltd) addressed an advert which featured a woman wearing only thong-style underwear lying on artificial grass. The ASA saw the use of the image, which was not for underwear or any relevant product as one that “objectified and stereotyped women as sexual objects, was irresponsible and likely to cause serious offence.”
4. A September 2022 advert for Wild Deodorant featured a woman who seemed to be masturbating under her bedcovers before being interrupted by a talking polar bear. The ad had been shown on a YouTube channel which mainly contained commentary videos about Minecraft, Roblox and Pokémon and was largely, but not exclusively, aimed at children. The advertiser said that their ads were targeted at those with relevant interests, and it was likely that someone deemed to be a prospective customer had been logged into the YouTube account at the time the ad was shown. Despite this, the ASA said that the brand had not gone far enough in excluding certain channels from their targeting and found the ad to have been irresponsibly targeted. In May 2022 the ASA considered Adidas' depiction of 20 naked women, cropped so that only their shoulders to their navel could be seen. They considered that the nudity was relevant to the product in question (sports bras) and that the women were not portrayed in a sexually explicit or objectified way. However, since the ads appeared in untargeted media and were therefore likely to be seen by children, they were unsuitable. Care also needs to be taken if the content of an advert is “likely to appeal strongly to under-18s”. In a December 2022 ruling, the ASA found an advertiser to have ”not excluded under-18s from the audience with the highest level of accuracy required” when using the age filtering tools available on a social media platform. Despite the advertiser: (i) limiting their account's feed so that it was only visible to those who had indicated they were over 18; (ii) filtering visibility on the platform for its advert (that should not have been viewed by under-18s under the new Rule 16.3.12 of the Cap Code) to only over-25s; and (ii) having platform data to show that of its 50,666 impressions 0% were under 20 - the ASA still found the advertiser to be in breach. This was because the platform permitted its users to self-verify their age on sign-up, which the ASA held not to be robust age-verification. Consequently, it may not be enough to use all available age filtering tools on a platform if the platform's age verification itself is dubious.
5. In November 2021, the ASA looked at email advertising from Box Menswear to their subscribers featuring images of men in underwear.  Whilst images of men in underwear would have been reasonably expected by subscribers, the explicit nature of the images (clear outlines of penises and a penis visible through mesh) would not. The ASA held that “the images featured in the ads were more sexually explicit than the images generally featured on the website”, and the email subject gave no warning of this.
6. Sexualising anyone who is under 18 or appears to be under 18 is not permitted (see CAP Code Rule 4.8), unless the advert is principally designed to prevent abuse of children and the sexualised portrayal is not excessive. In 2018 the ASA increased their age limit to protect all those under the age of 18, as opposed to those under 16. They did this to prevent "the view of under-18s in general as sexual beings and to stop some under-18s feeling pressurised to view themselves in this way". The new rules also provide further protection for individual models featured in advertising. Similarly, symbols of youth such as school uniform are also unacceptable if used in a sexual manner. The ASA upheld complaints in August 2022 against Pretty Little Thing regarding the use of influencer and brand ambassador Alabama Barker (aged 16) in adverts promoting their new collaboration. She wore outfits which the ASA considered "revealing". The ad contained sunglasses emblazoned with the text "THAT'S HOT" which the ASA considered to reference a "sexual or passionate feeling", as well as poses which were "likely to be considered as sexual" including lying on a bed and licking her lips. Text which read "channel that teen dream realness with barely-there mico mini skirts" was found to further highlight Ms Barker's young age. See also the recent furore around Balenciaga.
7. Women acting in a manner which is objectifying is both likely to cause offence and likely to be considered a gender stereotype contrary to Rule 4.9 of the CAP Code. The ASA in a December 2021 decision (Robinson Webster (Holdings) Ltd t/a Jigsaw) held that an advert for walking boots in which a female model was pictured on a hike wearing just boots, underwear and a jumper used the woman as a sexual object. Similarly, a January 2022 Renourish advert of a naked man with only a bottle of soup covering his crotch was found to objectify the model by using his physical features to draw attention to an unrelated product.
8. ASA guidance states that explicit images are rarely likely to be acceptable. The ASA in December 2012 (BangBros.com Inc) held that images of men engaged in sexual acts, while on an adult website, was not acceptable as users of the website who could not view explicit profiles (which required membership) were able to see the explicit advertisement.
9. In an April 2021 advert (Babyboo Fashion Pty Ltd) for Halloween, a voiceover from the cult movie Mean Girls which included the bleeped out word ‘slut’. The word was deemed to be clear from the context and the ASA found that the use of this degrading term was harmful.
10.  Some wordplay is ok if relatively mild. A March 2022 Paddy Power advert about "blowing your big chance" featured a conversation about the Cheltenham races between a father and his prospective son-in-law in which the son-in-law referred to "riding with [his] daughter". The ASA refused to uphold complaints since despite the advert being considered distasteful by some, it was unlikely to cause serious or widespread offence.  However, it is easy to get this wrong, particularly if it is objectifying (see Great Grass MCR Ltd December 2016 –  where a advert featuring a photograph of a lawn and a woman’s breasts and the phrase “real of fake” was found to be offensive and objectify women).