What you need to know
- The AANA's revised Code of Ethics for advertisements takes effect from 1 February 2021.
- Perhaps most significantly, the new Code introduces guidance on the level of disclosure that should be used as part of influencer marketing, with the AANA suggesting that influencers need to use clear labels (eg, "#ad", "paid partnership"). Ambiguous labels (eg, "spon" or "thanks to") or brand mentions are unlikely to be sufficient to ensure compliance with the Code.
- The revised Code and accompanying Practice Note also provide additional guidance on prohibited advertising content, including use of gender stereotypes, sexually explicit images and violent or menacing content in advertising.
What you need to do
- Review your advertising material and practices to ensure compliance with the new Code.
In 2019, the Australian Association of National Advertisers (AANA) announced a review of the AANA Code of Ethics (the Code), the self-regulatory framework for advertising in Australia. As part of the review, the AANA commissioned market research and received approximately 160 public submissions.
On 22 September 2020, the AANA launched a revised Code of Ethics which takes effect from 1 February 2021. The new Code, which will be used by Ad Standards when assessing complaints, is supported by a new Practice Note.
We outline some of the key changes to the Code arising out of the AANA's review below.
Influencers
The new Code retains the requirement that advertising or marketing communications must be clearly distinguishable from other content. However, the new Practice Note provides additional guidance on when influencer marketing will be distinguishable.
While the Code generally gives advertisers flexibility as to how they ensure content is distinguishable, the changes clarify that where a person such as an influencer accepts free products or payment from a brand in exchange for promotional services, the relationship must be made clear and obvious to the audience.
The update suggests that the mere mentioning of the brand, or the use of ambiguous labels such as "spon", "collab" or "thanks to…" are unlikely to be sufficient and brands should instead ensure that their partners use clear labels such as "#ad", "paid partnership" or "branded content".
Obligation to Avoid Harm
The AANA has expanded the objects of the Code to include ensuring that advertisements and other forms of marketing communications have been prepared with "an obligation to avoid harm to the consumer and society".
This replaces the old phrasing of a "sense of obligation to the consumer and society" and acknowledges the influential role that advertisements can play in shaping societal perceptions.
Harmful Gender Stereotypes
Section 2.1 of the current Code already prohibits gender discrimination in advertising. However, the new Practice Note provides additional guidance on what counts as discrimination and how gender stereotypes can be avoided.
The new Code expands the definition of "gender" to include all "attributes, roles, behaviours, activities, opportunities or restrictions" that society considers appropriate for girls and boys and women and men (the previous definition was limited to male, female or transgender characteristics).
The new Practice Note emphasises that advertisers should ensure that their advertisements do not perpetuate harmful gender stereotypes (even where humour is used) or unrealistic expectations related to gender stereotypes, including by mocking people for not conforming to stereotypes or by portraying one sex failing at a task that is stereotypically associated with another gender.
Sex Appeal
Consistently with the current position, section 2.2 of the Code prohibits the use of sexual appeal in advertising which is exploitative of or degrading to any individual or group.
The new Practice Note clarifies that the use of sexual appeal which is unrelated to the product or service being advertised is likely to be exploitative or degrading. This may include advertisements that contain close-ups on certain body parts of an attractive model when this kind of focus is not relevant to the goods or services being advertised. The updates also clarify that material with sexual appeal can be exploitative or degrading even where the sexual appeal is presented in an empowering way, {eg, through the use of confident-looking models).
Violent or Menacing Content
While retaining the current prohibition on the use of violent content in advertisements without justification, the new Practice Note also provides that the Community Panel may have regard to the audience of a particular advertisement when considering whether the depiction of violence or menace is justifiable.
Violence or menace is less likely to be justifiable where the advertisement has a broad audience that includes children, such as horror movies or video games involving violence.
Overtly Sexual Images
The new Code retains section 2.4 which requires all advertising to treat sex, sexuality and nudity with sensitivity to the relevant audience.
The new Practice Note provides specific guidance on the use of overtly sexual images in advertising. Advertisements are likely to be overtly sexual where, for example, they include suggestive poses or interaction between two or more people which is highly suggestive of sexualised activity. To assist advertisers determine when sexual images are inappropriate under the Code, the AANA has also released additional guidelines which include examples of appropriate and inappropriate images.
Generally speaking, overtly sexual images will be likely to offend community standards where the image is not relevant to the product or service being advertised or the image is displayed in public (eg, on a billboard or shop window).
Authors: Ray Cheng, Graduate; Ted Talas, Lawyer; and Anita Cade, Partner.
