By Clint Fillipou, Principal Partner (Melbourne) and Heidi Bruce, Principal Partner (Sydney)

Mercedes-Benz Australia/Pacific Pty Ltd (“MBAuP”) has run into some car trouble with AdStandards in relation to a YouTube advertising spot featuring F1 Driver George Russell. The spot features George in a high-powered Mercedes AMG C63 S driving through streets in a very aggressive and sporty manner. The case is quite an interesting one as it raises questions of just how far you can push the line with “motor sport” scenes, or vehicle proving or testing scenes, in Australian motor vehicle advertising (including YouTube spots).  Also interesting is that it appears that the spot may itself have originated overseas.  So this case also shows the risks of using advertising material produced overseas in this market, and attempting to retro-fit it with disclaimers to comply with our motor vehicle advertising code (the Federal Chamber of Automotive Industries Voluntary Code of Practice for Motor Vehicle Advertising, “FCAI Code”) and the overarching advertising code, the AANA Code of Ethics (“AANA Code”).  These Australian codes impose much more stringent rules than other markets on driving scenes in motor vehicle advertising.

It is a common issue that may have happened here with Mercedes-Benz – a fantastic looking spot is available for use in this market, but it is quite “out there”. A brand may have a clip sitting in a global library that is perfect, and can be used without incurring the costs of a new production, so they take that clip, add some localization to reflect the local finance offer, or price offer, and then run it. But there are always risks when doing so, and especially when using motor vehicle footage that is not made bespoke for our market.

What was wrong with the Mercedes-Benz spot? What should they have done instead?

The spot is a well-crafted piece that depicts George dynamically driving the AMG C63 S through different scenes, at what is clearly a high speed, and involves various different high-risk (at least, for drivers that aren’t George Russell) maneuvers. A version of the spot can be seen here. A disclaimer appeared at the start and throughout the spot that read “Professional F1 driver on a closed track. Do not attempt”, however as noted in the AdStandards determination, it is not sufficiently clear that the “closed track” is not just a normal road, and the disclaimer is required to do far too much heavy lifting here. As such, the driving was assessed as driving that would take place on a road, and fell foul of clause 2(a) of the FCAI Code for portraying driving that was unsafe or that would breach road rules. It would also have breached the AANA Code provisions relating to prevailing community standards on health and safety.

It is an accepted truth that motor vehicles are used in sport, and of course that most manufacturers invest heavily in F1, rally driving, touring car championships, Le Mans, Paris to Dakar, and other motor sport competitions to show the capability of their engineering teams, to develop new technologies, and push the sports credentials of their brands. It is also accepted that these brands should be allowed to use these sports credentials in advertising. So, there is an exemption in clause 3 of the FCAI Code for motor sports which provides that advertisers may make use of motor sport (such as racing or rallying), vehicle testing or proving in advertising, but this is subject to strict limitations. Mercedes-Benz attempted to rely on this and argued that the scene in the spot in question was showing the capabilities of the vehicle when undergoing testing or proving in a closed circuit by a professional race car driver. It is imperative for automotive OEMs and their agencies to accept the limitations of the motor sport exception in clause 3 of the FCAI Code. It is not something that can be enacted with a clever disclaimer and then act as a panacea for brands that want to show edgy, fast, sporty, risky, or otherwise “out there” motor vehicle footage. This is particularly problematic when using material shot or produced overseas, where the advertising codes of different markets carry different risks and have different requirements.  Ultimately, to properly depict motor sport or vehicle testing/proving in a manner that is compliant with the FCAI Code, the concept needs to be built properly from the ground up, which generally requires solid legal advice from the beginning of campaign development.

For instance, when portraying a motor sport, testing or proving scene, clear indicators of a closed track, such as fencing, marshalls, safety cones, signage, and similar should be visible, and this would usually need to be incorporated into the production plan and creative concept. Similarly, any racing vehicle should be in identifiable racing livery and the driver should be wearing motor sport attire, like a flame retardant suit, a helmet, and similar. In this case, the Mercedes-Benz spot had none of these hallmarks, and so it was determined that the spot failed to fall under clause 3.

What will happen now, and what are the key learnings here?

MBAuP is seeking an independent review of the determination, as is their right under AdStandards’ processes. However given the above it remains to be seen how successful that review will be.

There have been examples in the market of this being successfully done, but paying regard to the considerations in the FCAI Code during the development process is key.

We have advised agencies and brands on such campaigns many times over the years, and some of the most successful and brilliant pieces of automotive advertising have come to life as a result. Yes, those campaigns may have received complaints, but those complaints were dismissed because the advertising was created deliberately with the FCAI Code in mind.

Specifically, it is invalid to drop a disclaimer like “Professional F1 driver on a closed track. Do not attempt” or “Filmed on closed roads, trained driver used, do not attempt to copy” and expect that this will enable the spot to fall within the clause 3 motor sport exception.

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