Recently, I lodged a complaint with Ad Standards. Using its online complaint form, I reported a larger-than-life, porn-themed advertisement on display in my local shopping centre in Perth, WA. A week later, I received a notice from Ad Standards advising that while the ad was of concern to me, the Community Panel Chair considered that is was “an image of a woman in lingerie”, and that my complaint was of the type that has been “consistently dismissed” by the Community Panel.
Image: (Left) 'Luna', Upheld by Ad Standards Community Panel, November 2018;
(Right) ‘Janet’, Dismissed without Panel Review, July 2019
Naturally I was confused. The ad which was the subject of my latest complaint was virtually identical to another that the Panel had previously described as “sexually explicit”’ and upheld complaints against. Once an ad is denied panel review there is no other avenue for having a complaint heard. I - the consumer - had hit a dead-end, thanks to an arbitrary and inconsistent approach to complaints.
This most recent example of failure of the self-regulatory system caused me to reflect on the long history of the body’s double-standards, inconsistencies in ruling, and seeming inability to place community well-being ahead of the vested interests of corporations.
Ad Standards is the agency entrusted with the responsibility of ensuring advertising content meets community standards and aligns with the AANA Code of Ethics. Part of its role is to administer a self-regulated complaint-handling process. However, Ad Standards has a years-long documented history of failure to do its job.
For example, the sex industry has been free to promote porn and prostitution services to children. Oral sex and body-shaming slogans, and graphic porn-themed ads have passed Community Panel scrutiny. The Community Panel has trivialised children’s exposure to sex shop porn-themed advertising, stating that the audience - which includes children - sees a “woman posing in underwear”. When complaints have been upheld, it is often long after the ad has run its course and been replaced with new ads. Ads can remain on display weeks and even months after a ruling has been made because, while Ad Standards can give a verdict that an ad breaches Code, it can do nothing to have the ad taken down.
Image: Ad Standards dismisses complaints against graphic, porn-themed ad, July 2019
So, if Ad Standards can’t do what it is supposed to – that is, protect the community from harmful advertising – what purpose does the complaints handling process serve? Why are concerned citizens continually stymied by the system? Eight years ago a Federal parliamentary committee acknowledged the failings of self-regulation and stated that in the event of sustained failure, a self-funded co-regulatory system would need to be examined. But nothing has been done to act on that and in the meantime Ad Standards perpetuates the ruse that self-regulation is working.
To back its claim, Ad Standards cites data from a self-commissioned 2017 report prepared by Deloitte Access Economics: “Assessing the benefits of a self-regulatory advertising complaints handling system”. For example, CEO Fiona Jolly claims Ad Standards is “able to remove non-compliant content in a time frame that far exceeds any government regulator time frame”. This claim is underpinned by Deloitte’s research that compares Ad Standard’s current self-regulatory system with a hypothetical, government-regulated system. Comparisons were made on measures of cost, compliance, efficiency, effectiveness and responsiveness. It claimed (based on this hypothetical) a self-regulated model performed better than the proposed alternative. Conclusion: Self-regulation is serving the interests of Australian consumers.
But it’s not. Years-long, community-driven campaigns - necessary because of systemic flaws - demonstrate Ad Standards’ serious shortcomings. We know that self-regulation fails the public and aids repeat offenders such as Honey Birdette, which has been deemed in breach of the Code 38 times at the time of writing. In the absence of penalties, advertisers which have no interest in upholding community standards are free to advertise how they like, when they like, for as long as they like.
How did a report that was supposed to assess the benefits of a self-regulatory advertising complaints handling system miss all this? Surely a thorough and objective assessment would have flagged such obvious, repetitious failings.
Advertising a ‘low-risk’ problem - a faulty premise
An immediately noticeable flaw in Deloitte’s report is the assertion that advertising is a low-risk problem. Drawing from factors listed in the Best Practice Regulation Handbook, the report states that “advertising content that is not aligned with community standards is unlikely to put people in significant danger”. The claim goes against a growing body of evidence drawn from global research that verifies harms of exposure to sexually objectifying imagery in advertising and media.
As our State and Federal Governments battle the scourge of violence against women, they are increasingly factoring in the real-life harms of exposure to this harmful imagery. The report’s claims are entirely out of touch with contemporary understanding of the impacts of media and advertising on men, women and children.
System aids non-compliance while numbers hide it
Compliance measures how well advertisers cooperate with the self-regulated complaints-handling process. If an advertiser reports that the ad has been replaced with new ads, this is considered ‘compliance’ - even when the old ad was due to be replaced anyway, and regardless of the fact that the new ad may also breach the Code. In this way, Ad Standards aids and abets non-compliance, and - to its own advantage - calls it compliance.
Noting an overall rate of 80 per cent, the report tells us that compliance is “historically high”, and that non-compliance is “unlikely”. There’s no qualification given to the idea that 80 percent is ‘high’. Nor is due attention given to the fact that out of every 100 cases, 20 were incidents of non-compliance. Given that Ad Standards’ job is to protect the community from non-compliant activity, a 20 percent failure rate should have raised red flags.
The report tells us that if not for one particular advertiser, Ad Standards’ compliance rate would be as high as 94 percent. Imagine: non-compliers getting in the way of the notional benefits of self-regulation! It’s the same as saying that Ad Standard’s track record would be perfect, if only they didn’t have to do their job. But casting off outliers is not the privilege of a body whose job is to deal with outliers. In a brief consideration of non-compliance, the report ponders the need for a “stronger form of incentive” for non-compliers. Legislation, it notes, might be used to “reinforce the self-regulatory scheme”. Ultimately, the report uses the idea that most advertisers comply most of the time as grounds for rejecting the idea that stronger incentives are broadly or immediately needed. It fails to adequately consider the 2 out of 10 cases where advertisers do not comply, or what that means for the community. When non-compliance manifests as floor-to-ceiling public displays of pornified representations of women, or in public messages that advocate for women’s rape and murder, there’s no defense for dismissing the need for stronger incentives for recalcitrant advertisers.
When in amongst the 8 out of 10 compliers were advertisers whose modus operandi is to breach the Code, it is absurd to use compliance as a marker of the system’s success. Statistics on compliance shouldn’t hide non-compliance. And, rather than facilitating non-compliant behaviour, a successful system should have the means for stopping repeat offenders.
Arbitrary measures of ‘Efficiency’
The report describes efficiency as “the proportion of complaints responded to, the time taken to first respond to a case, and the time to resolve a case (that is, determine whether the advertisement is appropriate, and if not, remove it from the public domain).” It includes a range of numbers of days from complaint received to case finalised that are interpreted as measures of efficiency. For example, over 95% of cases are resolved within 56 days; 99.8% of cases are resolved within 84 days. The report acknowledges the importance of quick resolution of complaints but gives no parameters for what 'quick resolution' actually is. To imply that a two-to-three-month time-frame for case resolution benefits the public seems absurd when it means that Code-breaching ads can remain on display for months at a time with no penalty for the advertisers.
Self-regulation in action: Ads remain on display weeks after being found in breach of Code (This one spotted at a Perth shopping centre during Easter holidays 2019, a month after Ad Standards upheld complaints against it)
Ad Standards lacks power to remove ads
Ad Standards has no means of removing any ads from any place at any time. What difference does it really make how long it takes for Ad Standards to review and rule on a case when they can’t enforce a ruling? Ads are removed when advertisers decide to remove them.
There are instances in which Ad Standards can communicate with third-parties regarding breaches of Code, but in such cases, the removal of an ad from the public realm is only possible where regulations give the third-party power to remove it. This, of course, is an argument in favour of government regulatory measures – not self-regulation.
Regulation achieves what self-regulation cannot
At the time of the publication of Deloitte’s award-winning report Ad Standards had upheld complaints against 60 separate Wicked Campers slogans for breaching the AANA Code of Ethics, with complaints dating back to 2008. Ad Standards’ self-regulated model was powerless to procure compliance from Wicked Campers and essentially, for more than a decade, it facilitated the dissemination of rape, murder and torture messages in the public realm.
Now, after a decade of community-campaigner-driven petitions, lobbying, working with MPs, rounding up supporters, engaging media and exposing Wicked Campers there is at last a nation-wide agreement on a regulated approach that will stop Wicked Campers’ serially abusive marketing tactics. This victory is a testament to community-driven campaigning. It is also a blow for self-regulation, demonstrating as it does the failure of the existing system to bring repeat offenders into line. Despite this, Ad Standards took to social media to commend itself on the outcome!
It is unethical and abusive to hold community members to a system that relies on invitations to advertisers to comply with the community standard, when advertisers have neither the goodwill nor inclination to accept. A new system is needed to procure compliance from délinquants en série like Wicked Campers and Honey Birdette. When recalcitrant advertisers finally feel the heat of enforced penalties, communities will at last start to see their standards upheld.
Image: Wicked Campers' rape and murder slogans facilitated by a self-regulated system for ten years
Rigorous research or marketing ploy?
Evidence shows that the current self-regulated complaints handling system not only fails to serve the public, it actually harms them. Deloitte’s report reads like Ad Standards marketing spin. Rigorous research into the self-regulatory system would have paid greater attention to its blatant shortcomings and opened the door to addressing these. It would have considered the real impact these failings have on the community and recommended measures to stop repeat offenders. Instead, it is business as usual for the recalcitrants as the system works in their favour, and against the well-being of the rest of us.