By Winnie Lok, Solicitor

15 July 2020

We hear it time and time again: COVID-19 has affected every aspect of our lives. Everyday social interactions such as handshakes, hugs or merely standing side by side with another person were socially acceptable norms a few months ago, but are now considered a breach of public health and safety guidelines/standards in the age of COVID-19.

With social distancing the new norm, advertisers may feel inclined to incorporate depictions of social distancing practices and other current public health and safety standards into their advertising and marketing executions. COVID-19 has been around long enough now for us all to start thinking that this ‘new normal’ is likely to persist for some time, especially with secondary outbreaks a real risk of persisting for some time.

So, an issue we are advising clients on fairly consistently at the moment is this: what is and is not acceptable for advertisers (and their agencies) to depict in advertising, when it comes to social situations and social distancing?

Background

It goes without saying that COVID-19 is very much a health and safety issue. As a result section 2.6 of the AANA Code of Ethics (the “Code”) is primarily relevant, where it states that “Advertising or Marketing Communications shall not depict material contrary to Prevailing Community Standards on health and safety.” There is no definitive meaning as to what constitute Prevailing Community Standards under the Code, and this is quite deliberate so that the definition remains open to adjusted community standards relevant at the time a determination is made under the Code, as determined by the AdStandards Community Panel.

That is well and good, but it does present a difficult question for advertisers and agencies who are generally in production many months before advertising material hits the market. Given the evolving nature of COVID-19, how it impacts the community and how local, State and Federal Governments respond, the prevailing community standards keep shifting. This is especially the case where some States implement certain restrictions while others remain more open.

AdStandards has not introduced any detailed guidelines regarding compliance with section 2.6 in light of COVID-19, which is not overly surprising, however AdStandards has stated that to minimize the risk of advertisements breaching community standards during COVID-19, advertisers should ensure that the content of their advertisements reflect current community guidelines and health guidelines as outlined by the Australian Government. However, AdStandards has not made it clear whether the advertisement needs to meet the standards that are current at the time of production or the time of broadcast, or provided guidance in relation to the varying State/Territory guidelines and restrictions. We discuss these considerations in further detail below.

Of course, complaints being filed and complaints being upheld are two different things. It remains to be seen whether complaints would be filed in relation to advertising that depicts, for instance, friends hugging out the front of a theatre and sharing a packet of chips as they walk in to watch a matinee, a woman shaking hands with a real estate agent as she inspects a prospective property purchase, or group of men with their arms around each other at the footy, etc. Similarly, whether or not a complaint would be filed if a man was shown not wearing a mask while catching public transport.   If complaints were filed, it is unclear how AdStandards would treat this, but it is hoped and assumed a common sense approach would be taken.

Clearly, there are many considerations when it comes to presenting social interactions and person-to-person contact in an advertisement during the age of COVID-19. In each of the above examples, the advertising would arguably (if not very likely) breach the prevailing community standards on health and safety, in at least one market where the advertising was to be broadcast.

Our view is that advertisers face a choice. They can either carry on with their proposed advertising treatments as if COVID-19 is a non-issue Australia-wide (not recommended), or make a conscious effort to produce materials consistent with current COVID-19 recommendations, including social distancing and other recommendations. Thus, they can choose to incorporate social distancing practices in their advertising or marketing communications, or not.  Either way, our recommendation is to be consistent. Of course, many advertisers (depending on where production took place) would have to comply with such guidelines at the time of production in any event, as actors and talent would not be in a position to hug or be non-socially distant at the time of recording.

It is impossible to advise on this issue in a vacuum and without considering materials very carefully in light of the elements and messages of the commercial and the overall context. However in general, in the face of the above choice it would be our current recommendation that advertisers either only depict social distancing behaviour across ALL scenes and elements of an execution, or not depict any at all and avoid instances that would depict a need to socially distance/wear a mask, etc. For example, if one scene of a TVC or one frame of an online banner depicts two individuals maintaining a 1.5m social distance but the next scene depicts a massive house party or public gathering, the two scenes would be contradictory and therefore, effectively breach prevailing community standards.

Further to the above, it would be important to consider where the advertisement will be published or broadcasted: will it be viewed nationally or only in particular States or Territories? The Code applies to all advertising and marketing communication in Australia however, different States/Territories are currently under varying levels of restrictions so a social interaction that may be acceptable in Western Australia, may not be acceptable in Victoria for instance. Again, the media schedule in each case is very important to consider. It is also important to consider when the advertisement is likely to run, however since we cannot know when social restrictions will ease, we cannot plan with any certainty.

Finally, to be clear, compliance with prevailing community standards does not mean that every advertisement published or broadcasted during COVID-19 must reflect current social distancing and community guidelines, as this would raise major practical issues given the lag between production and broadcast, and many advertisements currently in market may have been produced long before the onset of the pandemic. In saying this, advertisers and brands need to be sensitive about what they are communicating during this time. Despite an advertisement being produced pre-pandemic, it is worth asking yourself: what kind of message is this advertisement sending at this given time? Does the advertisement encourage or display any explicit breach of health and safety guidelines? Is there anything we can do to adjust the material in post-production, and should we?