By Katarina Klaric, Principal, Stephens Lawyers & Consultants
All marketing and advertising must comply with The Australian Consumer Law, which prohibits content which is misleading or deceptive or likely to mislead or deceive or contains false representations in respect of the products or services being advertised[i]. In addition, there are industry, product or audience specific laws, codes and standards which apply.
Changes in community standards along with the need to protect groups which are vulnerable to exploitative marketing campaigns has resulted in the introduction of new codes and standards. This update provides an overview of the new AANA Code of Ethics for marketing and advertising and new Broadcasting Services (Australian Content and Children’s Television) Standards 2020 which regulates advertising content directed to children.
AANA Code of Ethics – 1 February 2021
The Australian Association of National Advertisers’ (AANA) new advertising and marketing Code of Ethics came into effect as of 1 February 2021, as a part of the self-regulatory system (AANA Code).
The object of the AANA Code is to ensure that all forms of advertisements and marketing communications irrespective of the media or new technology used are “legal, honest, truthful and have been prepared with respect of human dignity, an obligation to avoid harm to the consumer and society and a sense of fairness and responsibility to competitors”[ii]. The Practice Note accompanying the AANA Code provides guidance to advertisers and complainants in respect of the application of the AANA Code and must be applied in the determination of a complaint by the Ad Standards Community Panel (Panel)[iii].
The complaint resolution process under the AANA Code is managed by Ad Standard. Ad Standards publishes statistics about advertisement complaints and determination of complaints. In 2020, over 3,400 complaints were lodged with Ad Standards raising concerns about 369 advertisements. Of these, 29 advertisements were either voluntarily withdrawn or modified to remove the content the subject of the complaints, before being considered by the Panel. The Panel considered 340 cases and upheld about 18% of the cases[iv].
The 10 most complained advertisements in 2020 concerned a range of issues including discrimination against or vilification of women, nudity and exploitive or degrading scenarios[v].
The new AANA Code prohibits:
- the discrimination or vilification of any individual or group on the basis of defined attributes – race, ethnicity, nationality, gender, age, sexual orientation, religion, disability, mental illness or political belief in advertising[vi].
- the use of sexual appeal in advertising where images of minors or people who appear to be minors are used; or where the focus on body parts has no direct relevance to the goods or services being promoted[vii].
- the harmful use of sex, sexuality or nudity in advertising, and requires such content to be appropriate having regard to the audience[viii].
The Practice Note provides guidance to advertisers as to the type of sexual images that would not be appropriate in advertising[ix].
Broadcasting Services (Australian Content and Children’s Television) Standards 2020
The Broadcasting Services (Australian Content and Children’s Television) Standards 2020 (Standards) which were made by the Australian Communications and Media Authority (ACMA) under section 122(1) of the Broadcasting Services Act 1992 (Cth), came into effect on 1 January 2021. The Standards require a minimum amounts of first release Australian programs from genres specified in Schedule 1, to be broadcast by commercial television broadcasting licensees and require licensees to comply with certain protections of children viewers in respect of advertising content [x]. The Standards prohibit licensees from broadcasting advertisements:
- that mislead or deceive children;[xi]
- that are designed to put undue pressure on children to ask their parents or another person to purchase the advertised product or service;[xii]
- that state or imply that a product or service makes children who own or enjoy it more superior to their peers or a person who buys a product as being more generous than one who does not;[xiii]
- that inaccurately represents the advertised product or services or includes claims that are ambiguous;[xiv]
- in which children are depicted using products (including toys and games) unless those depictions fairly represent the performance which a child, of the age depicted can obtain from those products;[xv]
- that mention prices unless the prices are mentioned in a way which can easily be understood by children and meet the other requirements specified;[xvi]
- for a food product that contains any misleading or incorrect information about the nutritional value of that product;[xvii]
- that includes a disclaimer unless the disclaimer is presented conspicuously;[xviii]
- or a program that refers to competitions for children unless there is a summary of the rules and any statement of the chance of winning is clear, fair and accurate[xix].
The Broadcasting Services (Australian content and Children’s Television) Standards 2020, also includes prohibitions on the broadcast of unsuitable material immediately before, during or after a program which is classified for children viewing including material which:
- demeans any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, religion, mental or physical disability;
- presents images which are unduly frightening or unduly distressing to children;
- presents images or events which depict unsafe use of products or unsafe situation which may encourage children to engage in activities dangerous to them;
- advertises products or services which have been declared unsafe by the relevant regulator[xx].
The Standards also includes other restrictions on advertising designed to protect children viewers. The ACMA is responsible for ensuring compliance with the Standard and investigating complaints.
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Authored by Katarina Klaric, Principal, Stephens Lawyers & Consultants
© Stephens Lawyers & Consultants. 16 February, 2021.
This update is not intended to be a substitute for obtaining legal advice.
For further information contact:
Katarina Klaric
Principal
Stephens Lawyers & Consultants
Suite 205, 546 Collins Street
Melbourne VIC 3000
Phone: (03) 8636 9100
Fax: (03) 8636 9199
Email: [email protected]
Website: www.stephens.com.au
All Correspondence to:
PO Box 16010
Collins Street West
Melbourne VIC 8007
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[i] Competition and Consumer Act 2010. Schedule 2- The Australian Consumer Law, section 18 and section 29.
[ii]AANA Code of Ethics, February 2021, https://f.hubspotusercontent00.net/hubfs/5093205/AANA_Code_of_Ethics_Effective_February_2021.pdf?utm_campaign=Self-Reg-Codes&utm_source=AANA&utm_medium=web&utm_term=self-reg&utm_content=code-of-ethics.
[iii] AANA Code of Ethics and accompanying Practice Note, Valid as 1 February 2021, https://aana.com.au/self-regulation/codes-guidelines/code-of-ethics/.
[iv] Ad Standards Media Release, “Australia’s most complained about Advertisements in 2020”, 18 December 2020, https://adstandards.com.au/media-releases/australia%E2%80%99s-most-complained-about-advertisements-2020.
[v] Ibid.
[vi] Section 2.1 AANA Code of Ethics. See endnote 1 for the link to the AANA Code of Ethics.
[vii] Section 2.2 AANA Code of Ethics. See endnote 1 for the link to the AANA Code of Ethics. See also ANNA Code of Ethics Practice Note, February 2021, page 7, https://f.hubspotusercontent00.net/hubfs/5093205/AANA_Code_of_Ethics_PracticeNote_Effective_February_2021.pdf?utm_campaign=Self-Reg-Codes&utm_source=AANA&utm_medium=web&utm_term=self-reg&utm_content=ethics-notes.
[viii] Section 2.4 AANA Code of Ethics. See endnote 1 for the link to the AANA Code of Ethics.
[ix] ANNA Code of Ethics Practice Note, February 2021. See endnote 6 for the link.
[x] Broadcasting Services (Australian Content and Children’s Television) Standards 2020, section 7(1).
[xi] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 19.
[xii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 20(1).
[xiii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 20(2).
[xiv] Broadcasting Services (Australian content and Children’s Television) Standards 2020, sections 21(1) and 21(2).
[xv] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 21(3).
[xvi] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 21(6).
[xvii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 21(7).
[xviii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 22(1).
[xix] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 23.
[xx] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 31.