Image: (Left) 'Luna', Upheld by Ad Standards Community Panel, November 2018;

(Right) ‘Janet’, Dismissed without Panel Review, July 2019

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.

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.

See also: 25 Reasons why ad industry self-regulation is a disaster

In yet another display of inconsistent decision-making, the Ad Standards Community Panel has dismissed community complaints against a porn-inspired Honey Birdette ad. ‘Belinda’ features a series of close-up, head-to-chest shots of a woman wearing sheer, blue, mesh fabric. Despite the ad featuring graphic, sexualised imagery, the Community Panel made several unsubstantiated claims to ultimately conclude that the ad treated “sex, sexuality and nudity with sensitivity to the relevant audience” – one that includes kids.

With references to the length of time the images are shown for, the effects “lighting” and “framing” have on the ad, statements about featured body parts being relevant to the product being advertised, and an announcement that “most members of the community would not find the level of nudity in the advertisement confronting or inappropriate in the context of advertising a mesh bodysuit”, the Community Panel gave the green light to this public display of porn-themed imagery to an all-age, non-consenting audience.

Portions of the report state:

The Panel considered whether the advertisement was in breach of Section 2.4 of the Code. Section 2.4 of the Code states: “Advertising or Marketing Communications shall treat sex, sexuality and nudity with sensitivity to the relevant audience”. The Panel considered whether the advertisement contained sex, sexuality or nudity.

The Panel noted the Practice Note for the Code states:

“Images which are not permitted are those which are highly sexually suggestive and inappropriate for the relevant audience. Explicit sexual depictions in marcomms, particularly where the depiction is not relevant to the product or service being advertised, are generally objectionable to the community and will offend Prevailing Community Standards.”

The Panel noted the complainant’s concerns that the advertisement featured highly sexually suggestive images which resemble porn and which were inappropriate to be seen by children. The Panel considered whether the images depicted sex.

The Panel noted the dictionary definition of sex most relevant to this section of the Code of Ethics is ‘sexual intercourse; sexually stimulating or suggestive behaviour.’ (Macquarie Dictionary 2006).

The Panel considered that the depiction of a woman in revealing lingerie is not of itself a depiction of sexual intercourse, sexual stimulation or suggestive behaviour and that the advertisement as a whole did not contain sex.

The Panel considered whether the advertisement treated the issue of sexuality with sensitivity to the relevant audience.

The Panel noted the definition of sexuality includes ‘sexual character, the physical fact of being either male or female; The state or fact of being heterosexual, homosexual or bisexual; sexual preference or orientation; one’s capacity to experience and express sexual desire; the recognition or emphasising of sexual matters’. The Panel noted that the use of male or female actors in an advertisement is not of itself a depiction of sexuality.

The Panel considered that the style of lingerie being promoted was sexualised and that this did add an element of sexuality to the advertisement. The Panel considered that the depiction of the woman wearing this style of lingerie was relevant to the product being promoted. The Panel considered that although it is reasonable for an advertiser to depict the product being promoted, the depiction should be treated with sensitivity to the relevant audience. The Panel determined that the advertisement did contain sexuality.

The Panel considered the meaning of ‘sensitive’ and noted that the definition of sensitive in this context can be explained as indicating that ‘if you are sensitive to other people's needs, problems, or feelings, you show understanding and awareness of them.’ (https://www.collinsdictionary.com/dictionary/english/sensitive)

The Panel considered that the requirement to consider whether sexual suggestion is ‘sensitive to the relevant audience’ is a concept requiring them to consider who the relevant audience is and to have an understanding of how they might react to or feel about the advertisement – the concept of how subtle sexual suggestion is or might be is relevant to the Panel considering how children, and other sections of the community, might consider the advertisement.

The Panel noted that this image appears in store windows and considered that the relevant audience includes retail and service workers, people shopping in the Honey Birdette store and people who are not shopping at Honey Birdette but who are walking past the store, and that this last group would be broad and would include children.

The Panel considered that the flashing nature of the images may give the impression of a peep-show and added to the sexualised feel of the advertisement, however there was no focus on nudity or the woman’s body and the overall impression of the advertisement was not strongly sexualised. The Panel considered that the woman in the advertisement was not posed in a sexualised manner and that the wording on the advertisement was not sexual. The Panel considered that while the flashing images may attract the attention of children and people walking past the store, the images themselves were not overtly sexual. The Panel considered that the advertisement did treat the issue of sexuality with sensitivity to the relevant audience.

The Panel noted the complainants’ concern that the sheer material meant that there is a hyper focus on the woman’s bare breasts that this is a level of nudity which is inappropriate for a public space where children could view the advertisement. The Panel considered whether the advertisement contained nudity and noted that the dictionary definition of nudity includes ‘something nude or naked’, and that nude and naked are defined to be ‘unclothed and includes something ‘without clothing or covering’. The Panel considered that the Code is intended for the Panel to consider the concept of nudity, and that partial nudity is factor when considering whether an advertisement firstly contains nudity and secondly treats that nudity with sensitivity to the relevant audience. The Panel noted that the bodysuit worn by the model in the advertisement was sheer and that her nipples are visible through the fabric in the images. The Panel noted that the lingerie worn in the advertisement is available for purchase at Honey Birdette, however considered that products must still be advertised in a manner that is suitable for advertising on the front window of a store that is located in a shopping centre.

The Panel considered the Practice Note for the Code which provides:

“Full frontal nudity and explicit pornographic language is not permitted. Images of genitalia are not acceptable. Images of nipples may be acceptable in advertisements for plastic surgery or art exhibits for example.”

The Panel considered that in the first, second, third, fourth and fifth images the woman’s breasts and nipples can be seen through the sheer fabric of her lingerie, however considered that the woman’s nipples appeared to have been pixelated.

The Panel considered that the depiction of women’s nipples does not in itself amount to an unacceptable level of nudity. The Panel noted that it had previously determined that advertisements which featured female nipples in a way which is discreet and not the focus of the advertisement (0543/18, 0134/19, 0157/19, 0174/19), when advertising to a restricted audience (0097/17, 0086/15, 0145/17) or when advertising a non-sexualised product (0290/14, 0103/12, 0276/10) and therefore did treat the issue of nudity with sensitivity to the relevant audience.

The Panel considered that a large sector of the community are uncomfortable with images of mostly naked female breasts however the Panel considered that the brief display of the woman’s nipples were not the focus of the advertisement and were partially obscured by pixilation and were not the focus of the advertisement. The Panel considered that most members of the community would not find the level of nudity in the advertisement confronting or inappropriate in the context of advertising a mesh bodysuit.

The Panel determined the advertisement did treat sex, sexuality and nudity with sensitivity to the relevant audience and did not breach Section 2.4 of the Code.

Finding that the advertisement did not breach any other section of the Code, the Panel dismissed the complaint.

What do you think? Does this recent Community Panel decision reflect your community’s standards? Tell us in the comments below.

Read the full Case Report here.

Yesterday I took two of my children into town for ice cream. This is what they were exposed to on a busy Perth street.

Ad Standards has previously dismissed complaints over this same venue’s ‘Miss Nude’ billboards, on the basis that “based on the location of the building, the audience likely to be frequenting the area are generally customers of the venues and that... this is the relevant audience.”

But the “location of the building” is a busy street in Perth- one with restaurants, ice cream stores, a bookstore, library and Time Zone, and the audience is everyone. Why do sex industry interests trump kids rights? If public spaces include adult venues, do they become off limits to children Ad Standards? Are children not welcome in public spaces?

The harms from everyday exposure to sexually objectifying imagery like this are well-established. With twenty years of empirical research, 135 studies found across 109 publications, there is no shortage of research into the negative effects of sexual objectification. Consistent evidence found that:

"regular, everyday exposure to [sexually objectifying portrayals of women] are directly associated with a range of consequences, including higher levels of body dissatisfaction, greater self-objectification, greater support of sexist beliefs and of adversarial sexual beliefs, and greater tolerance of sexual violence toward women. Moreover, experimental exposure to this content leads both women and men to have a diminished view of women's competence, morality, and humanity."

What is the message being communicated to my daughter about women and girls? What do images like this teach her about how her body should look, where her value lies and who she should aspire to be? What do these images teach my son about what women are for? How does this near constant backdrop of sexist and sexualised images of women’s bodies prepare them for adult life and relationships? This view of women as endlessly sexually available is so normalised and accepted it is routinely broadcast on billboards and shopfront windows and nobody even blinks. How does this perceived acceptance of women as sex objects impact young people’s understanding of women and their place in the world?

Ad Standards consistently allows the sex industry to target children.

This photo of a billboard advertising a strip club was taken from a Brisbane boys school. Ad Standards dismissed complaints, and ruled the strip club ad treated sex, sexuality and nudity with sensitivity to the relevant audience- school children.

Ad Standards gave the green light to Honey B’s strip club billboard outside a school:

Ad Standards allowed sex industry exhibition Sexpo to advertise on school buses, including one emblazoned with the slogan "The most fun you can have with your clothes on" and others complete with URLs to hardcore live-streaming pornography.

Read about our legal victory against Sexpo here. 

A life size poster of this image was located on a busy Adelaide street. Ad Standards ruled this outdoor advertising was not in breach of industry codes and standards because "the image is relevant to the advertised product". The product was women, for men's sexual use.

Our current system of ad industry 'regulation' is broken. The harms of sexualising children are well-established, but the commercial interests of advertisers are time and again prioritised above children's rights and wellbeing. The ad industry was put on notice 8 years ago that they had one last chance to turn things around. The industry has proven that it cannot be trusted to regulate itself. It's time for a change. 

See also:

Ad Watchdog in Australia a dismal failure

25 Reasons Why Ad Industry Self-Regulation is a Disaster

Reclaim public space by reforming our advertising regulation system- Ask Your Candidate