Satomi Aki is a JD candidate at Osgoode Hall Law School.

The Advertising Standards Authority (ASA), the independent advertising watchdog of the UK, upheld On July 13, 2011, complaints against Jamster, a SMS mobile phone content provider, over their ad for a joke phone hacking app that was originally televised in April 2011.

The complainants alleged that the ad was misleading, contrary to rules 3.1 and 3.10 of the UK Code of Broadcast Advertising (BCAP Code), as it implied that the app would allow the buyer to read another person's private text messages. The ad was also challenged on the basis of rule 4.9 as being irresponsible for encouraging and condoning criminal behaviour (i.e. phone hacking).  The complete voice-over of the ad can be read here.

Jesta Digital GmbH, owner the Jamster brand, maintained that the ad never intended to imply that the app was a real SMS reader; they thought that the words “Fun App” appearing on the screen was sufficient to convey to the audience that the app was a joke product allowing consumers to pretend that they had acquired a real SMS reader. Clearcast Advertising Services, the agency that executed the joke ad, argued that the voice-over that included phrases such as “Fool your friends” and “This fun app” made clear that the app could not be used for unscrupulous purposes.

The ASA agreed with the advertisers that the ad was not irresponsible, as the ad did not encourage viewers to use the app for pernicious purposes. However, the ASA rejected the claim that the ad made clear that the app was a joke product as the ad was ambiguous as to the exact nature of the app. For example, the voice-over of the ad stated, “Fool your friends and pretend to read other people’s text messages”, but continued to say, “This fun app can hack into your friend’s mobile and give you all their incoming and very private SMS messages”. As such the ASA found that the ad breached rules 3.1 and 3.10 of the BCAP Code and held that the ad should not appear again in its current form.

The ASA decision is not surprising as the organization has historically fiercely defended the notion that advertising should be ‘legal, decent, honest, and truthful’. In addition, the decision was made in the midst of the public outcry against the News of the World and News Corporation for it phone hacking activities and just days after Rupert Murdoch announced that the News of the World would be shut down (For IPilogue’s coverage on Murdochgate see here and here).

In an unrelated interesting coincidence, News Corporation used to own the majority stake in Jamster until Jesta Digital acquired the brand in December 2010.