In a guest post, Professor Russell Sandberg looks at a rather unusual ruling by the Advertising Standards Authority.
The criminal offence of blasphemy is dead. It was unceremoniously abolished by section 79(1) of the Criminal Justice and Immigration Act 2008. My colleague Norman Doe and I wrote a piece entitled ‘The Strange Death of Blasphemy’, which looked at events leading up to its abolition. The offence is now long dead.
Yet as we mentioned in the conclusion to that piece, in some respects blasphemy, or at least blasphemy-like provisions, live on. There, we speculated on how other criminal law offences provided some degree of protection on grounds of religion. In addition to this, other non-criminal provisions are rather blasphemy-like, such as rules and guidelines that regulate the media and advertising.
A recent ruling of the Advertising Standards Authority (ASA) provides a stark and worrying example of this.
The ruling concerned an advertisement for a tour by comedian Fern Brady on the Sky News website. The advert included a photo that parodied a painting, The Lactation of St Bernard. While the original showed the Virgin Mary nursing St Bernard by spraying milk from her breast into his mouth, Brady’s version showed her in the Virgin Mary pose, though covered her breast with a beam of light, and included the title of her tour show, ‘I Gave You Milk To Drink’.
The ASA noted that “The intention was not to mock or belittle the original religious significance, but to offer a contemporary interpretation that aligned with her public personal as a comedian known for her irreverent style and her religious upbringing”. Nevertheless, the ASA upheld the complaint, holding that it “was likely to be seen as mocking the religious figures shown” and was therefore “likely to cause serious offence to some within the Christian faith who saw the ad on their site”.
This censorship not only offends free speech but also shows how the extra-legal regulation of the ASA goes further than the offence of blasphemy ever did. This may be justified, of course, in terms of blasphemy being a criminal offence. However, a comparison of the two is instructive and chilling.
The ASA examined Article 4.1 of the Committee of Advertising Practice’s UK Code of Non-Broadcast and Direct & Promotional Marketing (known as the CAP Code). This provides that “Marketing communications must not contain anything that is likely to cause serious or widespread offence” and gives a list of grounds upon which particular care must be taken to avoid causing offence, including “religion or belief”.
This is a much lower threshold than existed under the law of blasphemy, as shown by the last reported case on that offence, Green v The City of Westminster Magistrates’ Court [2007] EWHC (Admin) 2785. That case concerned an unsuccessful judicial review of the refusal to issue a summons against the play Jerry Springer: The Opera, which involved guests from the talk show appearing in the second act in the guise of a number of religious figures, including the Virgin Mary. The High Court was adamant that
“the gist of blasphemous libel is material relating to the Christian religion, or its figures or formularies, so scurrilous and offensive in manner that it undermines society generally, by endangering the peace, depraving public morality, shaking the fabric of society or tending to be a cause of civil strife” [16].
The judgment continued: “This element will not be shown merely because some people of particular sensibility are, because deeply offended, moved to protest”.
It seems clear, therefore, that the Brady advertisement, like Jerry Springer: The Opera, would not have been blasphemous. It is all the more concerning that the threshold seems significantly lower under the ASA. Causing “serious or widespread” offence is much easier to prove than something so offensive that it undermines society generally.
However, further examination of Article 4.1 of CAP suggests that the ASA’s decision is curious. Article 4.1 also states that:
- “Compliance will be judged on the context, medium, audience, product and prevailing standards”;
- “Marketing communications may be distasteful without necessarily breaching this rule”; and
- “The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code”.
It is questionable how the ruling can be reconciled with some of these statements.
The ASA concluded that Brady’s advert “must not appear again in the firm complained of, in media in which it was likely to cause serious offence”. It also “told Fern Brady to take care not to cause offence on grounds of religion in future ads”.
Regardless of what may be thought of the advert, this adjudication sets a deeply troubling precedent. The offence of blasphemy is long dead, but soft law provisions that have a much lower threshold than blasphemy laws ever did are, it seems, very much alive.
Russell Sandberg
I had the same reaction as Russell’s when I read the story. My e-mail response to him when he sent me this piece for inclusion on the blog was: “It seemed quite bizarre to me. I can’t see why any normal, rational person should be offended and, in any case, what about Article 10 ECHR? I cannot imagine that banning it could be ‘for the protection of health or morals’. Or am I just inherently unhealthy and immoral?”
Thanks for bringing this to our attention. I am working on a project on humour and the law (it also encompasses Meta Oversight Board decisions). Please have a look at our database if that kind of thing interests you!
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This is a very interesting case and I will add it in. I would have thought that they could appeal on the grounds of freedom of expression but I imagine the shelf life is too short and the process too time consuming unfortunately.
Not to say far too expensive!
In terms of an appeal, Fern Brady has commented on Instagram that the news broke while she was travelling to the last date of her UK tour so this has had no effect on her.
I think the adjudication does raise a number of points of principle, however.
I’m not against the secular principles you’ve mentioned. But I would distinguish this sort of advertising from other speech-acts. The ASA points out the ad was on “a general news site”. Any visitor impliedly chooses to learn about things that might offend them, but in the form of third-person reportage. By contrast ads are a second person address, and inserted into one’s browsing whether one chooses them or not.
More to the point, you can’t answer them back. The image isn’t a claim that can be challenged or rejected, which liberalism should protect. (I’d see no problem with ads saying “Catholic beliefs are childish and regressive: join the NSS if you think so, too.”). I think a more appropriate analogy is nude calendar above a colleague’s desk (or, indeed, sexually explicit advertising): demeaning and unavoidable, so a fair candidate for restriction.
That’s on the principle: whether the threshold is met here I’m less sure. And ASA may betray some prejudice when they refer to “the miracle… in which St. Bernard received divine grace” – rather than saying “*is believed* to have received”.
The point about it being published is a sound one. The adjudication reveals that Sky News did not check it. However, this raises the question of where else would be sufficiently public – tube stations, for instance.
It’s noticeable that many websites covering the news have reproduced the image. And it was on stage throughout Fern Brady’s performances. That, however, would seemingly be protected under the Theatres Act as Green pointed out.
> It’s noticeable that many websites covering the news have reproduced the image.
Do you mean as reportage, or that they’re also hosting the advert?
I think it’s the second-person address that adverts entail that makes it (potentially) problematic, rather than third-person reporting that you might be referring to. Similarly I’d contrast a newspaper that runs Jyllands Posten-style cartoons on its cartoons page just to throw down the free speech gauntlet, and a newspaper that runs them in good faith to report what all the fuss is about.
Maybe we still want to say that running the cartoons (and this image) should be allowed, but I think there’s still a conceptual difference between the two.
When I loaded Russell’s piece onto the blog, I didn’t post a picture either of the impugned advertisement or of The Lactation of St Bernard simply to avoid the possibility of breaching someone’s copyright.
Thanks. I agree there is a difference between the two. But the fact that the image has been used in reportage, for me, underscores how inoffensive it is.
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What I find bizarre about this ruling is that isn’t suggested anywhere in the image that this is mocking either the miracle itself, or the painting it depicts. What is there to take offence ‘at’? Could the same ruling then apply to the publishing of the original Cano painting (which is more explicit)? I don’t know if we can be sure if his motives after all.
Surely the pastiche of (what is to some) a deeply holy encounter between two deeply holy people is itself the mockery? There’s no need to suggest that “in the image”: the image works as a whole by cocking a snook at what others hold sacred.
That may be fair game in a liberal society, but I think those who say they can’t see why *anyone* would be offended are thinking a little too much like Protestants. (“As any fule kno, an image can add nothing to faith. So how can an image denigrate faith?”)
The original painting isn’t a sacred object, it’s a representation of a sacred act. This photograph is a representation of the painting. A copy of a copy. Furthermore, it does nothing to denigrate either the original depiction, or offer a positive or negative opinion either way about the act depicted. It is no more offensive than the original, arguably less so. So it’s only possible to take offence at Fern Brady’s own opinions about Catholicism, which are protected by freedom of speech.
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