Primary responsibility for observing the Code rests with advertisers. Advertisers cannot disclaim responsibility where they have caused, directly or indirectly, advertising to be created by direct agents or other third parties on their behalf. Others involved in the preparation and publication of marketing communications, such as agencies, media, affiliates and other service providers, also accept an obligation to abide by the Code.
The ASAI will take into account the impression created by marketing communications as well as specific claims. It will adjudicate on the basis of the likely effect on consumers, when taken as a whole or in context, not the advertiser’s intention.
The media play an important role in applying the provisions of the Code. While the media will refuse to publish a marketing communication that contravenes the Code, they are under no obligation to publish every marketing communication offered and will exercise discretion in each case. The fact that a marketing communication conforms to the Code is not a guarantee that it will be accepted.
A marketing communication may be found to be in breach of the Code if the advertiser/promoter fails to respond, or unreasonably delays responding, to the ASAI. Likewise, advertisers/promoters may be found to have contravened the Code if they do not respond, or unreasonably delay their response, to the ASAI.
The ASAI will observe requests to treat in strict confidence any truly confidential material supplied unless the Courts, or an official agency acting within its statutory powers, compel its disclosure.
Rules in Section 18 relate to Online Behavioural Advertising (OBA), and apply only to OBA third parties as defined in Section 18. If the ASAI is unable to identify the relevant OBA third party, the advertiser – on behalf of whom the OBA advertisement is delivered to web users – must, in good faith, co-operate with the ASAI to help determine the identity of the OBA third party.
Advertisers have primary responsibility for ensuring that their marketing communications are in conformity with the law. A marketing communication should not contain anything that breaks the law or incites anyone to break it, nor omit anything that the law requires. The determination as to whether or not a marketing communication is legal is a matter for the courts or other appropriate regulatory authorities.
Advertisers should not state or imply that a product can legally be sold if it cannot. It is not a matter, however, for the ASAI to determine whether a product can or cannot be legally sold in Ireland.
Humour and satire are natural and accepted features of the relationship between individuals and groups within society. Humorous and satirical treatment of people and groups of people is acceptable, provided that, taking into account generally prevailing societal standards, the portrayal is not likely to cause grave or widespread offence, or to cause hostility, contempt, abuse or ridicule.
Marketing communications should respect the dignity of all persons and should avoid causing offence on grounds of gender, marital or civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community.
Marketing communications should respect the principle of equality of men and women. They should avoid gender stereotyping and any exploitation or demeaning of men or women. Where appropriate, marketing communications should use generic terms that include both the masculine and feminine gender; for example, the term “business executive” can be used to refer to both men and women.
To avoid causing offence, marketing communications should be responsive to the diversity in Irish society and marketing communications which portray or refer to minority groups or vulnerable people should:
(a) Respect the principle of equality in any depiction of these groups.
(b) Fully respect their dignity and not subject them to ridicule or offensive humour.
(c) Avoid stereotyping and negative or hurtful images.
(d) Not exploit them for unrelated marketing purposes.
(e) Not ridicule or exploit religious beliefs, symbols, rites or practices.
Advertisers should take account of public sensitivities in the preparation and publication of marketing communications and avoid the exploitation of sexuality and the use of coarseness and undesirable innuendo. They should not use offensive or provocative copy or images merely to attract attention. Marketing communications that may be considered by some to be distasteful, might not necessarily be in breach of the Code. Nevertheless, advertisers are urged to consider public sensitivities before using potentially offensive material.
The fact that a product is offensive to some people is not, in itself, sufficient basis for objecting to a marketing communication for the product. Advertisers should, nevertheless, avoid causing offence in such marketing communications.
Compliance with the Code is assessed on the basis of the standards of taste, decency and propriety generally accepted in Ireland. In this regard, attention is drawn to Section 2.4(c).
A marketing communication should not cause fear or distress without good reason, such as for example, the encouragement of prudent behaviour or the discouragement of dangerous or ill-advised actions. In such cases, the fear aroused should not be disproportionate to the risk.
(a) A marketing communication should not encourage or condone dangerous behaviour or unsafe practices.
(b) Where the purpose of a marketing communication is to promote safety it may be acceptable to portray dangerous behaviour or unsafe practices.
Subject to the exceptions referred to in 3.28 below, advertisers should have written permission in advance from living persons portrayed or referred to in a marketing communication. Permission is also required before any person’s house or other possessions can be featured in a manner which identifies the owner to the public.
Exceptions where permission may not be required include:
(a) The use of crowd scenes or property depicted in general outdoor locations, or where the purpose of the marketing communication is to promote a product such as a book, newspaper article, broadcast programme or film of which the person concerned is a subject.
(b) In the case of people with a public profile, references that accurately reflect the contents of books, newspaper articles, broadcast programmes, films or other electronic communications, etc.
Marketing communications should not exploit the public reputation of persons in a manner that is humiliating or offensive. Marketing communications should not claim or imply an endorsement where none exists.
Marketing communications should not misrepresent their true purpose. Marketing communications should not be presented as, for example, market research, consumer surveys, user-generated content, private blogs, or independent reviews if their purpose is marketing, i.e. the promotion of a product.
The identity of the advertiser, product or service should be apparent. This does not apply to marketing communications with the sole purpose of attracting attention to communication activities to follow (so called “teaser advertisements”).
Attention is drawn to the requirements of the Data Protection Acts, 1988 and 2003, and the ePrivacy Directive (S.I. No. 336/2011) in regard to the collection, processing, keeping, use and disclosure of personal data.