This article was first published on Intellectual Property Magazine, November 2015 

Paddy Power for most complained about ad, odds at 6-4
 
Allegations of financial mismanagement and fixed voting, an unpublished Ethics Committee report and now criminal investigations – it’s clearly been a difficult few months for FIFA and its long-time president, Sepp Blatter. Mr. Blatter has been easy media fodder and the butt of many jokes amid the ongoing FIFA scandals. One such joke from Paddy Power, an advert which appeared in the Guardian Sport section, has been considered in a recent ruling by the Advertising Standards Authority (“ASA”). This article takes a look at the distinctive advertising voice of Paddy Power and the question “Just when is it okay to say F**K?”
 
Never far from controversy, Paddy Power has a track record of topical, tongue-in-cheek adverts and has, more than once, earned the title of “most complained about” advert of the year. Furthermore, in 2014 Paddy Power produced what’s believed to be the most complained about (UK) ad ever, offering odds on the Oscar Pistorius murder trial. The quip “money back if he walks” led to 5,525 complaints and a ruling from the ASA that Paddy Power had trivialised a murder trial and disability, and had brought advertising into disrepute.
 
Paddy Power’s provocative marketing isn’t limited to traditional advertising media – the bookmaker has been known to pull a prank or two, particularly in connection with the Cheltenham Festival. In March 2012 Paddy Power put a jockey on the Uffington White Horse and had the “world’s longest advert”, a 50 foot “PADDY POWER” sign, constructed on a hill overlooking the Gold Cup-hosting racecourse. The sign was eventually removed for lack of planning permission.
 
Drawing the line when it comes to swearing
 
Guidance from the Committees of Advertising Practice (“CAP”) on offensive language states that while some words are unlikely to ever be acceptable in marketing communications, for other words advertisers must consider the overall context of the ad. This was exemplified by the ASA’s ruling on an Australian Tourist Board ad from 2007, where the ASA made clear that mild swearwords, which are sometimes acceptable in newspapers and targeted media, should not appear in poster advertising because it is likely to be seen by children. The advertisement in that case included the phrase “WHERE THE BLOODY HELL ARE YOU?”
 
For playful advertisers tempted to use word play, phrases that are likely to be misread as swear words have also been found likely to cause serious or widespread offence – like the phrase “Sofa King Low!” (ASA ruling on The Sofa King Ltd, February 2012). Similarly, partially obscured swear words and the use of symbols to replace some of the letters may also be likely to cause serious or widespread offence where the words are obvious derivatives of swear words. However, Urban Outfitters successfully relied on their adult target audience and “street style” attitude to defend their use of the words “Effin”, “***king” and “fukkit” in a marketing email. Although the ASA ruled that these were obvious swear word derivatives and had the potential to cause offence, it was decided that the email was unlikely to offend its particular recipients or cause widespread offence among them. This decision, along with the Australian Tourist Board decision, emphasise the importance of context and targeting when using swear words (or swear word derivatives) in advertising. 
 
How to stay on the right side of the line
 
UK advertising rules provide that marketing communications must not contain anything that is likely to cause serious or widespread offence. However, marketing communications may be distasteful without breaching the rules. The Paddy Power advert featuring Sepp Blatter appeared in the Sport section of the Guardian, offering odds on the 2015 FIFA presidential election. Sepp Blatter was depicted revealing the winner of the election, holding up an envelope with the word “ME” inside. Above the image in the ad was a message from Paddy Power to Mr. Blatter: “JUST F**K OFF ALREADY!” In response to the complaints Paddy Power told the ASA that the ad reflected the sentiment of football fans around the world and was in keeping with its distinctive voice. Paddy Power argued that F**K was a less offensive presentation of the word and the Guardian’s adult readership was unlikely to be offended by it. The advertiser also mentioned that it had received no direct complaints about the ad and said it had received an overwhelmingly positive response on social media.
 
In its ruling the ASA noted that although the meaning of “F**K” was clear, readers were likely to understand that the ad was intended to be a light-hearted comment on the ongoing allegations surrounding FIFA. In another demonstration of the importance of context and targeting when using swear words in advertising, the ASA considered the use of F**K unlikely to cause serious or widespread offence given the adult readership of the Guardian Sport section.
 
So, the lesson for advertisers, as illustrated by the Paddy Power and Urban Outfitters ASA rulings, is that a poster on a school bus stop saying “JUST F**K OFF ALREADY” would be ill-advised, but distinctive and even distasteful marketing communications may be acceptable if appropriately targeted.