On 23 September 2020, the AANA announced a new advertising Code of Ethics (Code) and associated Practice Note that will take effect from 1 February 2021. The new Code applies to all advertising in Australia and will replace the existing Code.

Anyone can make a complaint to Ad Standards that an advertisement breaches the Code, and if the complaint is upheld by Ad Standards, the advertiser will generally be required to withdraw or modify the advertisement, so it’s extremely important to be familiar with the requirements of the Code.

Some of the key changes contained in the new Code (and Practice Note) are summarised below. This is not a complete list – to find out more, please read the new Code and Practice Note.

Here at CIE Legal, we do pre-publication review of advertising for compliance with the Code and various other advertising Codes. We also assist clients respond to Ad Standards in relation to Code complaints. Please reach out to us if you need this advice or need specific advice about how to apply the new Code to your advertising.

Prohibiting harmful gender stereotypes

The new Practice Note clarifies that advertisements containing harmful gender stereotypes will breach the requirement for advertisements not to depict people in a way which that discriminates based on gender. For example, advertisements should not suggest that skills, interests, roles or characteristics are:

  • always uniquely associated with one gender
  • have only options available to one gender, or
  • never carried out or displayed by another gender.

Advertisements are likely to breach this requirement if they:

  • mock people for not conforming to gender stereotypes
  • portray an activity or product as being inappropriate for a girl or boy because it is stereotypically associated with another gender or
  • portray one sex failing at a task that is stereotypically associated with another gender.

Advertisements should also be sensitive to the emotional and physical well-being of vulnerable groups of people who may be under pressure to conform to particular gender stereotypes. The example provided in the Practice Note is that advertisements directed at new mothers should not suggest that looking attractive or keeping a home pristine is a priority over other factors such as their emotional wellbeing.

In relation to children, advertisements can be targeted at, and feature, a specific gender but should take care not to explicitly convey that a particular children’s product or activity is uniquely suited to one gender or inappropriate for one or another gender.

Prohibiting the focus on body parts where not relevant to product or service being advertised

The current rule prohibiting advertising in a manner which is exploitative or degrading of any individual or group of people has been clarified by the Practice Note to introduce a specific prohibition on focusing on body parts where not relevant to the product or service advertised.

‘Focusing on body parts’ can include a close-up, multiple close-ups or long-still on breasts or buttocks or cropping in such a way as to emphasise these body parts.

Treating sex, sexuality and nudity with sensitivity to the relevant audience

The new Practice Note has provided more clarity regarding the requirement for advertising to treat sex, sexuality and nudity with sensitivity to the relevant audience.

Images of models in bikinis or underwear are permitted, however models shown in a suggestively sexual pose (e.g where underwear is being pulled up or down) are not.

The Practice Note also makes clear that overtly sexual images are not appropriate in outdoor advertising or shop front windows. Examples of overtly sexual images include:

  • poses suggestive of sexual position: parting of legs, hand placed on or near genitals in a manner which draws attention to the region;
  • people depicted in lingerie or clothing where a large amount of buttocks, female breasts, pubic mound or genital regions can be seen;
  • the use of paraphernalia such as whips and handcuffs, particularly in combination with images of people in lingerie, undressed or in poses suggestive of sexual position;
  • suggestive undressing, such as pulling down a bra strap or underpants; or
  • interaction between two or more people which is highly suggestive of sexualised activity.

Use of obscene language

The new Practice Notice provides more guidance on what will be considered strong or obscene language that is inappropriate in advertising.

Advertisements which use the ‘f’ word in full will be seen to constitute strong and offensive language, even when the audience is restricted. Advertising which uses the ‘f’ word where it has been insufficiently censored so that it can be easily understood by audiences, will be seen to constitute strong language, especially when seen by a broad audience.

Advertising which sufficiently beeps or censors language so that it cannot be understood will not be seen to be strong or obscene language.

Health and safety in advertising

The new Practice Note has provided much more guidance on the requirement for advertising not to depict material contrary to prevailing community standards on health and safety.

Images of unsafe driving, bike riding without helmets or not wearing a seatbelt while driving a motor vehicle are likely to be contrary to prevailing community standards relating to health and safety irrespective of whether such depictions are for the product/service being advertised or are incidental to the product.

In relation to the portrayal of farming, the dangerous use of quad bikes, children riding on tractors or other unsafe practices involving farming machinery will be contrary to prevailing community standards relating to health and safety.

Advertising which demonstrates the unsafe use of machinery, even when not the focus of the advertisement, is likely to be seen as unsafe and against prevailing community standards on health and safety.

Advertisers should take care not to depict behaviour that children may imitate. For example, advertisements which are likely to attract the attention of children or could indicate to children that appliances or other domestic/commercial equipment are a safe place to hide, are seen to encourage unsafe behaviour.

Obligation on influencers to disclose commercial relationships

There has been more clarification on the requirement for advertising to be clearly distinguishable as such to the relevant audience. This is particularly relevant to influencer marketing on social media. Where a brand is advertising their own product on their own channel (e.g. the brand’s Facebook or Instagram account), no specific labels are required where it is clear to the audience that the brand is advertising their own product or service.

However, where an influencer or affiliate accepts payment of money or free products or services from a brand in exchange for them to promote that brand’s products or services, the relationship must be clear, obvious and upfront to the audience and expressed in a way that is easily understood (e.g using labels like #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion). Less clear labels such as #sp, Spon, gifted, Affiliate, Collab, thanks to… or merely mentioning the brand name may not be sufficient to clearly distinguish the post as advertising.

For advice on the new AANA Code or other advertising issues, contact Raph Goldenberg.

Many thanks to Kelsey Krakauer, paralegal, for his assistance with this update.


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