From advertising an OnlyFans account on a billboard, using a fake New Zealand accent to conceal swearing, depicting ‘purchase paralysis’ and showing pubic hair near lingerie – The Ad Standards Community Panel determined a range of unique advertising complaints in June 2023.
The entertainment and food and beverage categories garnered the most complaints, with section 2.4 of the Australian Association of National Advertisers (AANA) Code of Ethics (the Code) attracting the most citations, providing: advertising shall treat sex, sexuality and nudity with sensitivity to the relevant audience. Section 2.4 was closely followed by sections 2.1 and 2.3, providing:
2.1: advertising shall not portray people or depict material in way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, gender, age, sexual orientation, religion, disability, mental illness or political belied; and 2.3: Advertising shall not present or portray violence unless it is justifiable in the context of the product or service advertised.
The Advertising and Regulatory Law team at BlackBay Lawyers have provided a summary of some of the most interesting cases determined by the Community Panel, highlighting pertinent issues that all advertisers should be aware of.
Keep reading to learn how you can remain compliant with the AANA Code and avoid any adverse regulatory, reputational or financial consequences when advertising your brand, product or service.
Universal Pictures – An on-demand TV advertisement is a promotion for the movie ‘Renfield’
The Ad:
The on-demand advertisement was promoting the movie ‘Renfield’, and was released in two versions:
Version 1 included a woman pointing a gun at a man, a man disintegrating into bats, a man slamming two others into the ground, a man slashing at people with blood visible, a man holding onto another’s arm, then kicking him so his arm rips off with visible blood gushing, and a scene with multiple injured or deceased persons on the ground.
Version 2 featured a scene including a man dragging a person.
Issues raised:
Section 2.3 of the Code: Advertising shall not present or portray violence unless it is justifiable in the context of the product or service advertised.
Determination
The panel referred to the Practice Note for this section of the Code, which provided that when considering whether the violence depicted is justifiable, the panel may have regard to the audience of the advertisement. For example, advertising for horror movies should take care not to include images that give impressions that a character has just committed violence against someone where there is a broad audience which includes children.
Turning their attention to section 2.3 of the Code, the panel found that both versions of the advertisement contained violence. The question then turned to whether the violence portrayed was justifiable in the context of the film advertised.
To that end, the panel considered that the majority of the scenes containing violence were justifiable in the context of advertising Renfield – a violent, MA15+ rated film. However, the panel raised concerns regarding the following scenes in the first version of the advertisement:
A scene depicting a man slashing at other people with blood visible;
A scene depicting a man having his arm severed; and
A scene depicting a woman pointing a gun at a man’s face.
In the case of the first two scenes, the Panel found that the promotion of the story and action within the film could have been depicted through less explicitly violent and gruesome scenes. The Panel also considered that the scene depicting a woman pointing a gun at a man’s face was inappropriate, noting that a sound is heard which is similar to the gun cocking, ready to fire. As such, there was a strong suggestion that the woman was willing or about to shoot the man.
With this in mind, the Panel determined that the first version of the advertisement did breach section 2.3 of the Code, and the advertisement was discontinued.
WC Savage – Billboard depicting a woman in a bikini with a QR code leading to the w.c.savage OnlyFans account – Independent Review of Original Determination
The Ad:
The billboard depicted an image of a woman in a black bikini swimsuit on her hands and knees in shallow water outdoors. The billboard included a QR code leading to the w.c.savage OnlyFans account, as well as the OnlyFans and Instagram logos.
Issues raised:
Section 2.2 of the Code: Advertising should not employ sexual appeal in a manner which is exploitative or degrading for any individual or group of people.
Section 2.4 of the Code: Advertising shall treat sex, sexuality and nudity with sensitivity to the relevant audience.
Original Determination
Earlier this year, the Panel made several determinations regarding sections 2.2 and 2.4.
Section 2.2:
The panel found that given the advertisement was intended to promote the woman’s OnlyFans account and features the body of the woman in a bikini swimsuit, the advertisement therefore used sexual appeal. However, the Panel noted that the woman depicted in the advertisement is the advertiser and owner of the OnlyFans account being promoted. As it was common for individual content-creators to use images of themselves to promote their brands, and the advertiser had chosen to share an image of herself to promote her personal brand, the advertisement did not employ sexual appeal in a manner that was exploitative of women. Similarly, the advertisement was not degrading to the woman as her choice to share her image did not lower her in character or quality.
As such, the advertisement did not breach section 2.2 of the Code.
Section 2.4:
While the Panel considered that the advertisement did not contain sex or nudity, it found that the advertisement did contain sexuality in light of the combination of a woman wearing a bikini and the promotion of an OnlyFans account, which was known by some members of the community to contain adult content.
The question then turned to whether the issue of sexuality was treated sensitively to the relevant audience. The Panel noted concerns that children could view the billboard or scan the QR code. To that end, the Panel considered that even if a child was to scan the QR code, all explicit images were hidden behind age-gating. Further, while the woman’s cleavage was visible, her breasts and genitals were covered and the Panel considered that the image did not draw attention to her genital region or indicate clear sexual innuendo. Instead, the image was found to be consistent with the types of images used to promote personal fashion, health or fitness brands.
Therefore, the advertisement did not breach section 2.4 of the Code.
The Review
After the original determination was made, the Independent Reviewer recommended that the Panel review its decision in the matter as the Panel did not consider whether the advertisement used sexual appear in a manner that was exploitative to women in general, and there was additional evidence that wasn’t originally considered.
Determination
While the Panel noted that there were some segments of the community who find sex work to be exploitative of women generally, it also emphasised that segments of the community would view this as a legitimate business able to be advertised. Instead of suggesting that women are objects or commodities, the Panel considered that the advertisement portrayed a woman’s sense of ownership over her own body and by extension, women’s bodies in general. As such, the Panel affirmed its original decision that the advertisement did not breach section 2.2.
In regard to the reaction of children to the advertisement and QR code, the Panel did note that it had failed to sufficiently consider the reaction of children in the initial review. To this end, the Panel considered that the advertisement did not include bright colours, cartoons, a call to action or anything that might particularly attract children to scan the QR code. Given most children who viewed the advertisement would be in the company of an adult, the Panel found that there would be very few children who would attempt to scan the QR code.
Finally, the Panel noted that its role was to reflect broad community standards and, in its view, most members of the community would not find the billboard to be contrary to community standards. As such, the Panel affirmed that the billboard did not breach section 2.4 of the Code and dismissed the complaints.
Athena – Radio advertisement featuring a fake New Zealand accent
The Ad:
The radio advertisement featured a conversation between a customer representative with a fake New Zealand accent repeatedly saying that a customer was “fuxed” because their home loan is about to come off a fixed rate. The customer representative then clarifies that he is from New Zealand, and the word “fuxed” is understood to mean “fixed” in a loan context.
Issues raised:
Section 2.1 of the Code: Advertising 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 orientation, religion, disability, mental illness or political belief; and
Section 2.5 of the Code: Advertising shall only use language which is appropriate in the circumstances (including appropriate for the relevant audience and medium). Strong obscene language shall be avoided.
Determination:
While the Panel considered that making fun of accents of minority groups is outdated, in poor taste, is not humorous and can be harmful, it found that the advertisement’s tone was light-hearted and was ridiculing the person in the advertisements, rather than New Zealanders as a whole. As the advertisement did not contain negativity towards New Zealanders, it did not breach section 2.1 of the Code.
The Panel then turned its attention to section 2.5, noting that the Practice Note for the section provided that the “f” word is generally viewed as harmful, and that non-verbal representations of the “f” word are generally not permitted. As such, the Panel found that the advertisement had insufficiently censored the word “f*cked” by pretending the speaker had a New Zealand accept and was saying “fixed”.
While the advertiser had attempted to mitigate the swearing by providing an alternative meaning, it considered that children would not understand the concept of a fixed rate loan and as such, be likely to hear swearing in the advertisement. It was for this reason that the Panel found the radio advertisement had breached section 2.5 of the Code.
eBay Australia – Pay TV advertisement portraying an office where staff are frozen with ‘purchase paralysis’ at the thought of online shopping
The Ad:
The pay TV advertisement depicts an office where staff are frozen with ‘purchase paralysis’ at the thought of online shopping. A delivery person is then depicted saying “with eBay’s money back guarantee you get what you ordered or your money back”. After this is said, the office staff start to move, and it is implied that they are now enabled to make on online purchase.
Issues raised:
Section 2.1 of the Code: Advertising or marketing communication 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.
The determination:
The Panel considered whether the advertisement was offensive to people with disabilities who suffer from paralysis. In doing so, the panel noted that the advertisement made no reference to disability, and that while some people with disabilities have symptoms of paralysis, the advertisement was not depicting people with a disability. Rather, the advertisement was visually depicting the commonly used phrase “purchase paralysis”. As such, the Panel found that the advertisement did not depict material in a way which discriminated against or vilified sections of the community on account of disability and dismissed the complaint.
Best&Less – A website product image featuring a person from the waist down with tattoos and depicting public hair.
The Ad:
The Best&Less product listing featured a person from their waist down with tattoos wearing brightly coloured underwear. The person’s pubic hair is slightly visible above the waistband of their underwear.
Issues raised:
Section 2.4 of the Code: Advertising shall treat sex, sexuality and nudity with sensitivity to the relevant audience.
Determination:
While the Panel found that the advertisement did not contain a depiction of sex, it noted that it contained sexuality in that it depicted a woman in lingerie. The Panel also found that the advertisement contained a depiction of partial nudity for the purposes of section 2.4.
A question was then raised as to whether the issues of sexuality and partial nudity were treated with sensitivity to the relevant audience. As the image appeared on the Best&Less website, the Panel considered the relevant audience for the advertisement was likely to be adults.
The Panel also noted that some hair could be seen above the waistline of the woman’s underwear. While it was recognised that it is unusual to see body hair on a female model in advertisements, and as such may be confronting to people viewing the product online, the Panel noted that women naturally have pubic hair. Therefore, the advertisement was a realistic depiction of how some women’s bodies look and served to normalise women having hair on their bodies. With this mind, the Panel found that the advertisement did not breach section 2.4 of the Code and dismissed the complaint.
