From 1 March 2018, the Australian Association of National Advertisers (AANA) Code of Ethics (Code) will change so that for a complaint to be upheld, the advertisement no longer has to be using sexual appeal in a way that is exploitative and degrading. The new section 2.2 of the Code will allow for a complaint to be upheld where the advertisement is either exploitive or degrading. The Code's administrator, the Advertising Standards Board (ASB) also announced that a new definition of exploitative will also be added as follows:
- taking advantage of the sexual appeal of a person, or group of people, by depicting them as commodities; or
- focussing on their body parts where this bears no relevance to the product or service being advertised.
This differs from the previous definition of exploitative that required the ad to be 'clearly appearing to purposefully debase or abuse a person, or a group of persons, for the enjoyment of others, and lacking moral, artistic or other values [emphasis added].' The revised section 2.2 and definition is simpler and appears to contain less hurdles to overcome before a complaint can be upheld. It also doesn't focus on the intent of the advertiser.
In recent times, the type of ads that received complaints under this section included:
- an Instagram ad for an t-shirt sale that featured a picture of a woman in a g-string with a male hand grabbing her bottom. The Board noted that the focus of the advertisement was the woman's bottom and groin and considered this focus, in pairing with the man's hand clearly presented this part of a woman's body for the enjoyment of others which was held to be employing sexual appeal in a way that was exploitative, as well as degrading to women.
- a TV ad for tyres which opened with a close up of a woman's breasts in a bikini top and a male voiceover announcing 'if it's got these [then shows picture of tyres]... or these it's gonna cost you money'. The ad then went on to say that the business could only help you with your tyres. The Board also upheld this complaint as an exploitative use of sexual appeal. It considered the reference to both the tyres and women as 'it' in effect drew a comparison between women and property and was degrading.
- a Facebook ad for Jetstar featuring a woman jumping in a bikini jumping into water, with text reading 'Turn putting it off into taking off' was conversely dismissed by the Board. It was held that it was not unreasonable for a brand to advertise an airline sale by referencing someone in holiday wear. It therefore had some relevance to the advertised product.
- an internet ad for plaster featuring a woman in lingerie and high heeled shoes in a seated pose with text reading 'Venetian Plaster. It's Natural, Beautiful and Sexy'. The complaint was dismissed in 2016 but may have been upheld under the new Code. The image was found to have no relevance to the product sold and the Board considered that most members of the community would find it to be exploitative but that the advertisement was not presented in a degrading manner. The Board noted that in order to uphold the complaint it would need to be considered both exploitative and degrading but, from March, this is no longer the requirement.
If a complaint is upheld (following an investigation in which an advertiser is provided with an opportunity to respond), the advertiser is requested to remove or amend the offending advertisement as soon as possible, but in any event within five business days it must confirm that it has been or will be removed or amended.
It is important to keep in mind these new changes when considering the overall impression that an advertisement creates, especially in respect of products that have a long tradition of employing the tactic of 'sex sells'. Featuring a scantily clothed woman or man in an ad and whether that is relevant to the product is an important consideration, especially where there is unnecessary focus on such body parts. These questions have been a focus of Board determinations in the past, but there does not need to be a bikini featured for the use of sexual appeal to be considered exploitative or degrading.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.