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.

I have been a client of Australian Ethical for a number of years now. I made the conscious choice to switch super funds in an effort to invest more responsibly. Their website says "We invest in companies to have a positive impact on the planet, people and animals. We agitate for change and that means taking a stance." This sounded great and seemed aligned to my values.

Until I realised that Australian Ethical invested in property. And this included Lendlease Group and Stockland who facilitate Honey Birdette's harmful hyper-sexualised advertising. The very advertising I have been campaigning against for years. And just so we are clear this is the type of advertising that Honey Birdette are pushing in the public domain to our kids. This is what Lendlease Group and Stockland are facilitating. This is what Australian Ethical are investing in. This is what my superannuation is funding. 

Australian Ethical replied:

"We agree the advertising from Honey Birdette is concerning. They have breached the Australian Association of National Advertisers Code of Ethics 30 times since 2012 & shown general disregard toward compliance with the Code."

"We are engaging with Lendlease & Stocklands asking them to require Honey Birdette to comply with the Code for all advertising within their shopping centres."

"We invest in Lendlease because they develop & manage a range of properties including schools & hospitals & are considered a sector leader in sustainability. They’re also one of the few companies in the industry to target large scale urban regeneration projects."

"Like all companies Lendlease has negative impacts which we take into account in our ethics assessment. But not every negative will mean a company is automatically ruled out for investment & in some cases we can have more of an impact engaging with them."

"We exclude over 60% of the ASX top 200 companies. The word ethical doesn't mean every company we invest in is perfect (in our experience perfect companies are rare). We look at the positives and negatives to assess if a company is, overall, aligned with our Ethical Charter."

Collective Shout calls on the Morrison Government to take urgent action to fix the broken advertising self-regulatory system following yet another example of its failure.

Collective Shout has documented the fundamental weaknesses and systemic flaws of the current system, including no power to enforce rulings when breaches are found and the absence of any fines or other penalties even for repeated non-compliance. For example, sex store Honey Birdette – known for its porn-themed portrayals of women - has been found in breach of the Australian Association of National Advertisers (AANA) Code of Ethics 38 times.

Wicked Campers has also ignored findings of breaches of the Code in 80 cases for their slogans, many advocating sexual violence.

Now the Ad Standards Community Panel Chair has refused to even send a complaint for review by the Community Panel.

Collective Shout campaigner and Corporate Social Responsibility advisor, Lyn Swanson Kennedy, was advised that her complaint would not be referred to the Community Panel even though an earlier complaint about an almost identical portrayal of a woman was upheld by the Panel. “The Panel Chair said my complaint was of the type that had been ‘consistently dismissed’ by the Community Panel," Swanson Kennedy said. “But late last year, the same Panel upheld complaints against an almost identical ad noting: “the sheer material of the bottom half of the bodysuit is transparent and the woman’s pubic mound is clearly visible”.

Image: (Left) 'Luna', Upheld by Ad Standards Community Panel, November 2018; (Right) ‘Janet’, Dismissed without Panel Review, July 2019

This is arbitrary and inconsistent. “How can one person be allowed to make this decision? What is the point of the Community Panel if they don’t get to see the complaint and make a determination as a whole?” Swanson Kennedy said. “And what is the point of a ‘community standard’ when it can’t be upheld?”

This example further highlights the need for a new advertising co-regulatory system that has real penalties to stop the harmful objectification of women, instead of the current dead-end complaints process. We need a genuinely independent review system separate from the vested commercial interests of the advertising industry, with enforcement powers to deal with repeat offenders.                           

Refuses to submit complaints re porn styled image for review

Over many years, Collective Shout has drawn attention to the problems of our self-regulated advertising system.  Recent experiences have caused us to focus on one particular stage of the complaints process: triage. At triage, the Ad Standards Community Panel Chair reviews a complaint and either dismisses it (effectively denying the complaint Panel review), or forwards it to the Panel for consideration and a ruling.  

A week after lodging complaints about Honey Birdette’s recent Janet bodysuit ads and receiving auto-reply emails confirming receipt of my complaints, I received another email from Ad Standards advising that while the images were of concern to me, the Community Panel Chair - considered that they featured “women in lingerie” and were to be of the type of ads that have been “consistently dismissed” by the Community Panel. Accordingly, complaints against the Janet bodysuit ads would not be forwarded to the Community Panel for review.

But late last year, the Ad Standards Community Panel upheld complaints against an almost identical ad, noting that:

“the sheer material of the bottom half of the bodysuit is transparent and the woman’s pubic mound is clearly visible”.

Image: (Left) 'Luna', Upheld by Ad Standards Community Panel, November 2018; (Right) ‘Janet’, Dismissed without Panel Review, July 2019

I raised this with Ad Standards and asked how the Janet bodysuit images that were stylistically identical to the Luna ad could be denied Panel review.

Another reply from Ad Standards ensued. It stated that while Ad Standards takes prior rulings into account, in the case of Janet, Luna was “not as relevant as it is a still image which allows more focus on the details of the image. In this instance the fast moving montage video does not allow for the same focus.”

The Chair decided that flashing pubic mounds displayed in a montage of images (images that are indistinguishable from one that breached Australian Association of National Advertisers Code of Ethics in November 2018) were neither “overtly sexualised”, nor did they comprise “inappropriate nudity”. In essence, they single-handedly determined that ad for the Janet bodysuit was (to use Ad Standards’ language) “appropriate for the broad audience that includes children”. 

This solo-made determination raises several questions.

• Where is the evidence that a montage doesn’t allow for the same focus as a still image?
• Does the Chair have current data on the time required to cognitively process a viewed pubic mound?
• Why were the facts that several different images were used in sequence in the Janet bodysuit ad, and that the video paused for several seconds on the final image used as grounds for denying the ad Panel review, when taken as a whole the Janet bodysuit ad gave viewers plenty of time to make out features contained within?
• Is it plausible that the bright, flashy medium and fast pace at which images were rotated heightened - not lessened - a person’s focus on the images? 
• And what about Honey Birdette’s new mode of video montage advertising, where images are shown on rotation at varying speeds?
• Will Honey Birdette ads here onwards escape Panel scrutiny because the Chair thinks that montage videos don’t allow for the same focus as still images and are therefore appropriate for viewing by an all-age audience - even if pubic mounds are visible?
• Would Luna have met the same fate had it been shown as a flashy sequence of still images rather than a single, still-shot? 

Still, the Chair rules. There’s no getting around them. So, while Ad Standards boasts a diverse Community Panel, the Panel’s value is lessened by the sheer fact that at times, members of the public are unable to access it. Do Panel members know about these cases that the Chair intercepts? Are triaged ads ever audited or given account for by other people?

And how does Ad Standards use the data on pre-Panel review dismissals? Do these numbers add to their aggregate data on compliance and help boost their defense of self-regulation?

Moreover, do I detect an air of gaslighting in Ad Standards’ correspondence? They explained that when assessing a complaint under the “Consistently Dismissed” procedure, the Chair considers what a “reasonable member of the community would take from the advertisement”. Are they insinuating that I - and other complainants who have their complaints dismissed prior to Panel Review - are not “reasonable” members of the community? This is concerning. Perhaps it’s a means of discouraging us from lodging complaints in the future? I was determined to get a proper explanation of why my complaint against Janet was denied Panel Review while complaints against Luna were upheld, so I pursued communication with Ad Standards. Our inkling is that many people simply accept the Chair’s kibosh on their complaints without rebuttal. It’s complicated enough to go through the basic complaints process. Who, especially following advice that she is out of step with “reasonable” people, wants to stick her neck out further and attempt to defend her original complaint? And if Ad Standards thought I was unreasonable last time I complained, won’t they think the same next time? Why bother lodging any more complaints? Gaslighting accomplished.

Of course, a triage process is needed. But a triage process that depends on the sensibilities of one person and that provides no avenue for challenge is neither robust nor fair. I accept Ad Standards’ assertion - the Community Panel “can’t possibly review every complaint”. Ad Standards must meter its resources. But when denial of Panel Review demonstrates arbitrariness and inconsistency, and when it is based on refutable claims, members of the public should be able to raise a challenge.

The lunacy of Luna vs Janet demonstrates the need for a new regulatory system for our ad industry - one that stops the harmful, sexploitative advertising activities of repeat offenders like Honey Birdette and protects the public from dead-end complaints processes.

Not sexually suggestive, but is sexually suggestive. Just two women posing in their underwear, but also two women in sexy lingerie expressing their sexuality.  

The suburban shopping centre sex shop still ignores Ad Standards with impunity 

1. Sign the petition https://www.change.org/p/stop-allowing-honey-birdette-using-porn-style-advertising-in-your-family-friendly-shopping-centres
2. Share the petition link with your friends and family members
3. Email the shopping centre company leaders directly and ask them to once and for all put a stop to Honey Birdette’s public displays of porn-style ads in your community (you can find their contact details here)

1. Sign the petition here: https://www.change.org/p/stop-allowing-honey-birdette-using-porn-style-advertising-in-your-family-friendly-shopping-centres

2. Share the petition link

3. Write to the CEO of your local lessor to Honey Birdette using the contact details below:

Collective Shout challenges false claims by Honey Birdette CEO re porn-themed ads