By Matt Hansen, Senior Associate and Heidi Bruce, Principal |
Recently, the Australian Association of National Advertisers (AANA) announced that following an extensive review of its Code of Ethics, a new Code would come into force from 1 February 2021, along with a new Practice Note to guide in interpretation of the Code. There are several key changes including a tougher set of rules around harmful gender stereotypes, undue focus on body parts, overtly sexual images and violent content. This raises some big issues for an advertising industry that derives many of its themes from distilled consumer insights and ‘typical’ relatable characters to cut through in a short space of time. Does it mean we have to screen out gender stereotypical characters from ads now? What does this mean for girls in pink dresses, boys in pants, and the stupid dad? Can we still show body parts? We explore the big changes and what it means for advertising here.
What has changed?
From 1 February 2021, a new Code of Ethics will replace the current Code. The new Code is worded in largely the same way as the old Code. There are no new provisions and the existing provisions remain materially the same other than minor wording changes. There is a new objective (which is not binding of itself but is one of the overarching guides) to ensure ads avoid harm to consumers and society.
The most significant changes are in the AANA’s Practice Note, which is intended to guide interpretation of the Code for advertisers and agencies and will inform the Ad Standards Community Panel in making its complaint determinations under the new Code.
The AANA has promoted this new Practice Note in a way that suggests it will be seen as binding in its own right, so it will be important to be familiar with the major changes in the Practice Note. The new Practice Note is very prescriptive in terms of the expanded guidance around each major consumer complaint provision of the Code.
The four areas that include the most significant updated guidance are discrimination, sexual appeal, violence, and clearly distinguishable advertising.
Section 2.1 of the Code (on discrimination and vilification in advertising) has not changed but the AANA has included significantly expanded guidance on how to interpret issues related to discrimination and vilification on the basis of gender. This includes:
- Harmful gender stereotypes are now called out as “unacceptable” as they perpetuate “unconscious bias and rigid norms of femininity and masculinity that shape what it means to be a girl, woman, boy or man”.
- It recommends avoiding a range of themes around gender stereotypes including suggesting certain things are:
- a) always associated with one gender (e.g. a woman having sole responsibility for cleaning up);
- b) the only options for one gender; or never associated with another gender.
One of the problematic themes specifically raised, is showing one gender failing at something stereotypically associated with another gender (e.g. a dad failing to undertake simple parental tasks). This suggests that the commonly seen bumbling dad character could be at risk in future ads under these ‘harmful gender stereotype’ requirements.
On the same basis, you could say that a ‘dumb blonde’ failing at changing a tyre or adding up money, could be at risk of now being considered discrimination because it depicts a harmful stereotype.
Previously under the Code, these sorts of concepts might have fallen on the right side of the rules, as while they may reinforce a stereotype, they do not amount to discrimination. Now we have this very clear wording in the Practice Note that harmful gender stereotyping is at risk of being discrimination. This gives the Ad Standards Community Panel more direct guidance, in other words, more in their arsenal to uphold complaints on these issues.
The AANA notes that portraying a person as attractive does not, in and of itself, constitute discrimination or vilification, however, advertisements should be sensitive to vulnerable groups. For example, an advertisement aimed at mothers suggesting that looking attractive or keeping a home pristine is a priority over other factors such as their emotional wellbeing.
In relation to advertisements featuring or aimed at children, the AANA notes that such material can be targeted at and feature a specific gender but should take care not to explicitly convey that a particular product or activity is uniquely suited to one gender or inappropriate for one or another gender. It flags explicit labelling of children in a way that reinforces perceptions of what children can or cannot be, because of their gender, as more likely to be problematic. This brings to mind themes in advertising that show girls in a typical female role or boys in a typical male role. If it is suggested that for example a boy can’t play with dolls, or mocks girls because they are playing with trucks, or that dolls are only for girls, this would fall into problematic territory. You can see the tightrope advertisers may need to start balancing on, with these issues.
Section 2.2 of the Code (on use of sexual appeal in advertising) has not changed but the new Practice Note has expanded guidance including that:
- Models in underwear or lingerie surrounded by or next to fully clothed models may suggest a power imbalance and be found to be exploitative or degrading.
- Material can be found to be exploitative or degrading even where the model is looking confident where the model is being depicted as a product or commodity or the focus on body parts is not relevant to the product or service being advertised.
- Advertising which used sexual appeal and suggests that a person is a product, or that they exist only for the enjoyment of others will breach the Code.
- Advertising which uses attractive models in revealing clothing, where the use of the model is not relevant to the product, will be found to be exploitative.
Section 2.4 (which requires ads to treat sex, sexuality and nudity with sensitivity to the relevant audience) has also not changed, but the new Practice Note has provided separate guidance including that “overtly sexual” depictions where not relevant to the product or service are likely to be unacceptable. It says that overtly sexual images are not appropriate in outdoor or shopfront advertising. It has issued a separate “Guide to overtly sexual imagery in Ads”, with sample pictures of what is acceptable and not. Some of the new guidance includes that the following may be “overtly sexual”:
- Poses or interactions which are suggestive of sexual position.
- People shown in clothing where private body parts can be seen.
- Sexual undressing.
The AANA has said that this comes from research suggesting community concerns with sexually explicit advertising.
In terms of violence, the same rules under the Code applies, in that ads shall not show violence unless it is justifiable in the context of the product or service advertised. However under the new Practice Note, the AANA has introduced some new guidance. It makes clear that the audience is relevant in considering whether the violence or menace depicted in an advertisement is justifiable. For example, the AANA considers that in advertising for violent or horror movies, TV shows or video games where there is a broad audience which includes children, these should avoid images that give the impression that a character has just committed violence against someone, was the victim of violence or is about to commit violence against someone.
These changes have been promoted by the AANA as being driven by the community supporting tighter restrictions around advertising violent video games and horror movies.
Clearly Distinguishable Advertising
Section 2.7 of the Code (on advertising being clearly distinguishable) has changed. Advertising must still be clearly distinguishable, but the wording that it must be distinguishable ‘to the relevant audience’ has been removed. This means an argument to the effect that particularly savvy or sophisticated target audiences may understand how influencers work, may carry less weight now. Also, the Practice Note contains expanded guidance with an increased focus on a positive obligation on influencers to disclose commercial relationships in a clear, upfront manner that can be easily understood.
Where an influencer accepts payment (in the form of money or free products) 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. Previously, the AANA provided no particular guidance on what hashtags could be used, however the new Practice Note now specifically calls out certain labels as “less clear”, including #sp or Collab, and says that these may not be sufficient to clearly distinguish the post as advertising, depending on the context.
This is important to note as advertisers will need to bear in mind that the hashtag used to identify an influencer relationship may need to be more express. The Practice Note indicates that the AANA prefers unambiguous terms such as #ad over others.
How will this affect my campaign?
Many of you would notice that a lot of this guidance already reflects best practice in terms of Code of Ethics compliance, and the AANA’s views in most areas contains no major revelations. What it does signal, however, is a shift in community attitudes towards a more conservative expectation, particularly in respect of gender stereotypes, body image and violence implications. You could say that the Code is just reinforcing issues that would already be weeded out in concept development anyway, as concepts need to be in tune with cultural norms to resonate with the market. However, advertisers and agencies also need room for creative licence and humour. With the requirements being so prescriptive, this makes it harder for advertisers to create concepts that push boundaries and rely on consumer insights to land a powerful message.
The true impact of this revised Code and how strictly the Ad Standards Community Panel will adhere to the Practice Note will not be known until determinations under the new Code are made. The notes on gender stereotypes in particular are interesting as they are not clear cut and call into question where the line will be drawn. Is it the end of pink for girls and blue for boys? Do advertisers need to consider including boys in Barbie doll commercials? Can certain movies no longer be marketed as “Chick Flicks”? The question of when does a stereotype cross the line into “harmful” is a subjective one and is something everyone will be watching very closely. The tightness of these new requirements could leave scope for some surprisingly conservative decisions. We will be watching this space carefully for any updates in this respect. Note that any complaints made for advertisements currently on air will be decided under the current Code and Practice Note, these do not come into force until February 2021.
That said, the updated guidance in the Practice Note does reflect shifting attitudes in advertising review that may already be present in the Ad Standards Community Panel. In a recent decision regarding a Sportsbet TVC (Decision no. 0100-20), the Panel took the view that a commentator stating a man in the TVC was “as whipped as Prince Harry” was in breach of Section 2.1 of the Code in regard to discrimination. The Panel considered that the term ‘whipped’ in this context implied women playing an assertive role in a relationship was a negative matter and suggested that women are domineering and controlling, and that men who defer to their partners should be ridiculed or thought less of, and this was a negative depiction of women and men and the relationship between them. Although considered under the current Code, it nonetheless raises the same issues being discussed in the Practice Note and reflects the current thinking of the Panel.
In the meantime, however, and if your campaign is likely to continue into 2021, it would be prudent to bear in mind the more conservative change in the wind in terms of depictions of gender stereotypes, overtly sexualised body images and implied acts of violence and consider this in any pitches or concept development.
If you would like further information on the above and how it impacts on your advertising, please contact one of our experts below.