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Advertising Standards Board determinations – the last 12 months in review

30 May 2013

The past 12 months has certainly been a dynamic time for the Advertising Standards Board – 2012/13 saw the Board having to make determinations in the relatively unchartered waters of social media, ‘sexting’, Gen Y acronyms and iPhone Apps! Leading up to this period, the ASB commissioned a report by Colmar Brunton which found that as compared to 2007 the community had become more conservative in relation to strong language, sex, sexuality and nudity – especially in relation to images/language available to children. Conversely, the report found that the community had become less conservative in relation to issues relating to health and safety and violence/discrimination, particularly in cases of humorous racial or religious references. This alert will take you through the key themes of 2012/2013.


In July 2012, the Foster’s VB Facebook Page was found to be in breach of the Code. Significantly, the offending material did not come from Foster’s, but rather from other Facebook users. The Board, in a landmark determination, considered that as Foster’s had a reasonable degree of control over the Page, and had used the Page to engage with customers, the Code applied to the content generated by Foster’s as well as material or comments posted by other Facebook users. A key issue was that the inappropriate comments such as “women should be chained to da kitchen” had been posted as early as 2011 and had never been removed. By contrast, the Board was much less critical a few months later in its assessment of Pizza Hut’s Facebook Page, where the questionable comments had been more effectively monitored and moderated.

In 2013, the Board also found that Facebook content posted by an advertiser that “invited” demeaning/objectifying comments was in breach of the Code. In this case, Zoo Magazine posted an image of a woman cut in half with the question “left or right?” and another featuring a woman’s underwear-clad bottom asking “What would you call this [game] console?”

Key Outtakes: As company’s social media sites are coming under increased scrutiny by regulatory bodies, it is wrong to assume online promotional activity can be more risky or edgy than advertising via mainstream media. Treat your Facebook page (in its entirety) as an advertisement for your brand. Don’t post up material that may be seen as deliberately “inviting” inappropriate/demeaning/racist comments. Ensure your brand’s Facebook pages are adequately monitored and moderated. As a guide, the Australian Association of National Advertisers (AANA) advises brand owners to monitor their sites in the hours immediately after a post and at least once every 24 hours during the week (including weekend and public holidays depending on volume and traffic).


In June 2012, the Board found that an iPhone App for Chupa Chups fell within the definition of ‘advertising or marketing communication’. As part of its reasoning, the Board noted that the creation of the App had cost the company money and resources, and that it drew the attention of the public in a manner calculated to promote the product.

Key Outtake: Remember that your iPhone apps are not exempt from the Code, especially if they are heavily branded or significantly feature your product.


‘Sexting’ was a big health and safety issue for the Board over the past 12 months. The issue first arose in March 2012 with Mossimo running a Facebook ‘Peepshow’ campaign that encouraged girls 16+ to upload pictures of themselves to the Mossimo Facebook Page. The Board considered that

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because the context of the Page was sexualised via images of women in lingerie and the sexy peepshow theme, the Page could encourage ‘at risk’ young teens to upload inappropriate pictures of themselves. The Page was seen to be in breach of the Code, notwithstanding the fact that Mossimo had clear instructions that no images of a sexually suggestive nature were allowed.

A similar campaign for Loveable underwear was reviewed in September 2012. In this case the Facebook Page encouraged girls 13+ to “take selfies” with their besties to win weekly prizes. The page featured two female models wearing loveable underwear, but stated “…you don’t have to be in your undies…obvs”. The Board considered it possible that younger people would see the Page as condoning or legitimising the taking/uploading of ‘selfies’ whilst in underwear, and consequently found the Page to be in breach of the Code.

By contrast, when the Board reviewed the Zoo Magazine Facebook Page in February 2013, they found that an invitation to send in “hot pics” did not breach the Code, because the message was aimed at primarily adult women.

Key Outtake: Beware of promoting a campaign that may be seen as encouraging under 18s to take ‘sexy’ photos of themselves. If the surrounding content of the page is sexual in nature (e.g. people in their underwear), clear instructions barring ‘sexting’ or Page ‘house rules’ may not be enough.


A BMW advertisement (May 2012) that featured the text “OMG, OMFG, WTF, and LMFAO” was found to not breach the Code for language as the Board found that the acronyms were consistent with modern Australian vernacular and that the language inferred in the ad via subtitles was not inappropriate and neither strong nor obscene.

Key Outtake: OMG! Acronyms that infer swearwords are OK.


Images of a topless woman placed on a car (Ontilt Events –Sept 2012), publicly placed posters of a naked cartoon woman (Pelvis – April 2013), pictures of women’s cleavage in shopping centres (Centrepoint Tamworth – Feb 2013/Honey Birdette – Jan 2013), and a banner with an image of a woman’s bottom branded with the words “Hot Stuff” (Hot Stuff Adult Shop – Nov 2012) were all deemed to breach the Code. In these cases, the Board noted there was a level of community concern about the sexualisation of children – and acknowledged that the placement of the advertisements meant that the relevant audience was broad and could include children.

By contrast, non-sexualised nudity that was relevant to the product being advertised, was not often not considered to be in beach of the Code; examples being the Naked Tan bag advert featuring a naked woman by a pool (June 2012) and the Berlei Bra billboard featuring a woman in a bra next to the words “Get your boobs done in your lunch hour” (May 2012).

Key Outtake: If you wish to use nudity in your ads, ensure it is as non-sexualised as possible and in context with the product you’re promoting. Avoid placing advertisements containing nudity or sexualised images in public/high traffic areas where they may be easily viewed by children.


Overall, the Board did not look favourably on violence that was out of context to the items being promoted. Ads where a person being ‘hit’ looked or sounded distressed were deemed to be in breach of the Code (Hungry Jacks – Oct 2012 & RJ Graphics – Jan 2013). Further, violence that targeted women, was generally seen as a breach of the Code. For example, Strike Bowling Bar’s ad with the headline “It’s all fun and games until you shoot your girlfriend” for its laser skirmish (May 2012) and an ad alluding to a domestic assault for Sunlight Power dishwashing foam (Symex – May 2012) were both found to be in breach of the Code.

Key Outtake: If using ‘joke’ type violence in advertisements, ensure as much as possible that it does not look or sound realistic, or that the ‘victims’ do not appear genuinely distressed. Avoid any statements that could be interpreted as encouraging violence against women.


Domayne was seen to be in breach of the Code (Jan 2013) for publishing a magazine feature where children slept next to a Christmas tree amongst a row of lit candles. Although the practice was not actually unsafe as the candles were battery operated – the Board considered this was not clear enough in the ad. Similarly, an advertisement with images of people smoking e-cigarettes was considered to be so similar looking to smoking real cigarettes, that it was also seen to be in breach of the Code (Brand Developers – April 2013).

Energy Australia breached the Code in November 2012, after launching a series of ads depicting an Energy Australia worker inside a person’s fridge. The Board took into account the many accidents relating to children becoming trapped in fridges and held that the portrayal of a man being shut in a fridge was contrary to prevailing community standards on health and safety.

Key Outtake: Check that what you are depicting in your ad is not a practice that might be unsafe or harmful if replicated (especially by children).

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