Australia: Advertising Standards Board determinations – using sexual content and avoiding discrimination in advertising

Advertisers should remain aware that not only must their advertising and marketing communications comply with the Competition and Consumer Act 2010, they should also comply with relevant advertising codes, otherwise complaints may be made to the Advertising Standards Board (ASB).

Looking at trends in determinations made by the ASB helps advertisers gain an understanding of how the ASB interprets the various advertising codes and how to avoid the negative publicity generated by an adverse finding by the ASB.

In this article, we explore ASB determinations made in the first half of 2013 about advertisements in the context of sexual content and discrimination.

What Does the AANA Code of Ethics (Code) Say About Sexual Content?

The Code provides that advertising or marketing communications:

• shall treat sex, sexuality and nudity with sensitivity to the relevant audience.
• should not employ sexual appeal in a manner which is exploitative and degrading of any individual or group of people.

The ASB has made various determinations this year concerning these provisions for different types of campaign. Below are some take home points if you are seeking to use sex appeal in an advertisement.

The depiction used should be relevant to the product being advertised and sexualised poses should be avoided

Complaints were made to the ASB that an advertisement for Missguided Fashion,¹ which featured images of female models wearing the brand's clothing, portrayed the women in a sexual manner and was sexually explicit. However, the ASB dismissed the complaints finding the clothing to be consistent with that of the target audience and the advertisement stylised and consistent with advertisements for similar clothing ranges. Whilst some of the poses may be considered mildly sexualised, the ASB considered they were not inappropriate in the context of an advertisement for a clothing range aimed at young women.

Complaints were also dismissed about an advertisement for KFC's Bacon and Cheese Burger,² which contained a scene where two men watched women bending and stretching in a Pilates class. The ASB found the women's clothing was appropriate for a Pilates class and their poses were not sexualised. Whilst the representation of the women could be considered to objectify them, it was not found to amount to a depiction which was exploitative and degrading.

Lessons?

Advertisers must consider whether the use of sex appeal is relevant to the ad, whether clothing worn is appropriate in the context and whether the presentation is so sexual as to be considered inappropriate.

People should be depicted in a confident and positive way

A point made by the ASB in dismissing complaints against the Missguided Fashion advertisement was that the most likely interpretation was that the models were confident and empowered. Similarly, in dismissing complaints against an advertisement for Depend Real-Fit incontinence pants,³ which showed a woman removing her dress to prove she was wearing the incontinence pants, the ASB considered that action was not sexualised and the overall impression was that the woman was empowered and in control.

Lessons?

An advertisement displaying a person in a positive light is less likely to be found in breach of the Code than scenes showing a person in a negative or derogatory manner.

Make sure the rating of the advertisement is appropriate and the advertisement is displayed in an appropriate medium/timeslot

In dismissing complaints about a Freedom Furniture advertisement,⁴ which featured a young couple kissing on a couch being watched by an older couple admiring their furniture, the ASB took into account the fact that there were ratings placed on various versions of the advertisement and care had been taken for various rated versions of the ad to be placed in appropriate programming material. The ASB considered the kissing scenes and nudity levels in the various ads were appropriate for the various rated versions.

Similarly, in dismissing complaints alleging inappropriate use of sexual innuendo in an advertisement for Schticky⁵ (a product used to clean dust and fibres from surfaces), the ASB took into account that the advertisement had been rated 'W' and was aired in the appropriate time slot.

Lessons?

If your advertisement uses sexual images, make sure it has an appropriate rating and is aired in an appropriate time slot.

Sexual innuendo that is mild and appropriate to the product may be allowed, whereas sexual innuendo that is crass or irrelevant will most likely not

The ASB dismissed complaints alleging inappropriate use of sexual innuendo in an advertisement for Schticky. The advertisement showed a scene with a cat leaving hairs over a woman's pants and a man asking the audience if you have a problem with that shedding pussy. The ASB considered the reference to "shedding pussy" could have a sexual meaning but in this instance it was accompanied by an image of a cat, and the sexual innuendo in the advertisement was relatively mild.

The ASB dismissed complaints about an online community awareness advertisement, as part of the "Get Your Hand Off It" campaign by Transport for NSW,⁶ which was about keeping your hands off your mobile phone whilst driving. Whilst the advertisement involved sexual innuendo, the ASB believed the sexual innuendo was mild and the advertisement made it clear that it was about keeping your hands off your phone. It found that the use of humour was intended to appeal to the younger target demographic and mild sexual innuendo was not inappropriate or offensive in this context.

The ASB considered that the use of sexual innuendo in a television advertisement for Dick Smith Foods,⁷ which involved adults saying they "love Dick", was not so strong as to be inappropriate, and the word "Dick" was relevant to the name of the advertiser.

Further, in considering the complaints concerning the Freedom Furniture advertisement, the ASB found that the phrase "whatever turns you on" is used in the Australian vernacular and does not necessarily refer to sex.

Lessons?

If the use of sexual innuendo is mild and is either accompanied by an alternative interpretation, is relevant to the product or is used in general Australian conversation, it is likely to be allowed.

What Does the Code Say About Discriminatory Advertisements?

The Code states that advertising or marketing communications shall not portray people or depict material in a way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, gender, age, sexual preference, religion, disability, mental illness or political belief.
If your advertisement could be argued to feature vilification or discrimination, you should consider the below points.

Inappropriate or insensitive images are to be avoided, especially if the matter is of concern to the public

The ASB received complaints that an advertisement for Dick Smith Foods⁸ was racist and offensive in its depiction of asylum seekers. In one scene, Dick Smith comments it is no wonder everyone is trying to get to Australia, and asylum seekers are shown wading out of water with a burning boat in the background. The ASB considered that there were a significant number of boat tragedies in the recent past and the advertisement made light of asylum seekers which was an issue of concern to many Australians. The ASB held the use of a burning boat was insensitive and inappropriate and strongly recommended that advertisers refrain from using such images. However, the ASB noted that the overall tone was light hearted and intended to be humorous, and in this instance the advertisement did not portray asylum seekers in a manner considered vilifying or discriminating.

Lessons?

Advertisements which are vilifying or discriminatory will be in breach of the Code. Consider the tone of your ad and whether it involves insensitive content. You should weigh up the nature of the ad against whether a group is being vilified/discriminated against.

Depictions should be appropriate to the product advertised

An advertisement featuring a well-known TV host describing the features of Depend Real-Fit incontinence pants showed her removing her dress to prove she was wearing the incontinence pants. The ASB dismissed complaints that it was in poor taste to show a mature woman "having to strip for an advertisement" as the removal of the dress was in the context of an advertisement highlighting the discreet nature of incontinence pants, and was not in poor taste or inappropriate. Further, whilst the target market was mature women or men, it was not of itself discriminatory to use a woman to advertise the woman's version of the product.

Lessons?

It is not of itself discriminatory to depict a product being used by the target audience and which involves actions relevant to the product.

Next Time

In our next article, Advertising Standards Board determinations - when does violence and bad language go too far? we will look at recent ASB determinations in the areas of violence, health and safety and inappropriate language.

Footnotes

¹ASB Case Number 0225/13, date 10 July 2013
²ASB Case Number 0111/13, date 10 April 2013
³ASB Case Number 0213/13, date 10 July 2013
⁴ASB Case Number 0004/13, date 16 January 2013
⁵ASB Case Number 0075/13, date 13 March 2013
⁶ASB Case Number 0227/13, date 10 July 2013
⁷ASB Case Number 0067/13, date 13 March 2013
⁸ASB Case Number 0067/13, date 13 March 2013

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.