Australia: Branding and banning – who really decides your brand’s message?

Advertisers and their agencies are always looking for clever and innovative ways to effectively communicate their messages and brands to audiences. This sometimes involves shock tactics, aggressive campaigns, and blurring the boundaries of traditional forms of advertising. Great campaigns are heralded for their ability to cut through to audiences, get people talking, be memorable and become part of culture. The tone and content of campaigns are set by agencies and the brands they represent. While it is important that campaigns comply with laws and advertising regulations, it is equally important that the message and the impact of a campaign is not dictated, or compromised, by regulation. Three recent decisions of the Advertising Standards Board (ASB) indicate that regulation may be moving towards editorial control of advertising content.

The ASB is responsible for overseeing compliance with the AANA Code of Ethics (Code). The ASB's principal objective is to maintain standards of taste and decency in advertising, having regard to prevailing community standards. The ASB appears to take the view that the integrity of the self-regulatory scheme relies on the ASB banning advertisements that infringe the codes, no matter how slight that infringement might be. However, there is a growing concern within the industry that the content of campaigns is now becoming over-regulated with a number of recent ASB decisions indicating the willingness of the ASB to play the role of content editor.

Sydney graphic design agency, RJ Graphics, is one of the latest victims of an ASB decision. The agency was forced to discontinue an outdoor advertisement after it was banned by the ASB for breaching the Code for portraying a violent image. The advertisement, which appeared on the back of Sydney buses, featured a man being punched in the face and the line 'Design for Impact!'. A complaint was lodged with the ASB that the ad was too graphic and violent. In the aftermath of the death of Thomas Kelly who was tragically killed earlier this year after being 'king hit' in Kings Cross, the complainant further asserted that the ad was in poor taste and unacceptable to community standards.

The ASB considered whether the advertisement breached section 2.3 of the Code, which provides that "Advertising or Marketing communication shall not present or portray violence unless it is justifiable in the context of the product or service advertised".

In concluding that the advertisement did breach section 2.3 of the Code the ASB noted:

• that the advertisement is for a graphic design company and that the depiction of a man being punched is not relevant to the product being advertised.
• despite the overall presentation being of a slapstick nature, the ASB considered the slapstick nature to be overridden by the fact that the punch is realistic and the man's reaction does not appear positive. The ASB noted that the man's attire could also be interpreted as being 'geeky' and considered that a likely interpretation of the advertisement it is acceptable to punch someone based on their appearance.
• given the size and location of the ad (on the back of Sydney buses), it was likely to be seen by children.
• use of a graphic image of violence in an area of the city where actual violence has been a real issue recently and that the advertisement presented violence in a manner that is not justifiable in the context of the product advertised.

Chrysler and Kia Motors Australia have also been the subject of the ASB's rigorous approach. Chrysler produced a television commercial showing a car with both its fog lights and headlights on (a breach of the Australian Road Rules), and Kia produced a TVC that showed a car 'speeding' through Melbourne CBD. In both cases, the ASB determined that the material before it was in breach of the Federal Chamber of Automotive Industries Advertising for Motor Vehicles Voluntary Code of Practice (FCAI Code).

The Kia commercial featured a group of people playing musical instruments on the surfaces of different Kia cars followed by the cars driving through the city. A complaint was made that the car 'appeared' to be speeding through the city area of Melbourne where the speed limit is reduced to 40 kilometres per hour. The ASB noted that the advertisement included one scene of the Kia range of vehicles moving through an intersection at an 'accelerated pace'. Clause 2(a) of the FCAI Code prohibits advertisements portraying unsafe driving that would breach any law, and provides examples of unsafe driving to include "...vehicles travelling at excessive speed; sudden extreme and unnecessary changes in direction and speed of a motor vehicle...".

The ASB was of the view that as the vehicles travelled through the intersection, although there was no verification of the actual speed of the vehicle, the visuals in conjunction with the roaring of the engine gave an impression of speed. The ASB considered that the depiction of the Kia vehicle in the advertisements was presented in a manner that is unsafe and therefore a breach of the FCAI Code. As a result, Kia Motors Australia had to remove the commercial from broadcast.

A complaint was made to the ASB about Chrysler's TVC which showed a Chrysler 300C driving in the early hours with both its fog lights and headlights illuminated at the same time. The complainant complained that this was in breach of the law and shouldn't be broadcast. Unfortunately for Chrysler, clause 2(c) of the FCAI Code specifically forbids advertisements that depict an action which would breach a Commonwealth, State or Territory law. Clause 217(1) of the Australian Road Rules refers to the use of fog lights and states that "The driver of a vehicle fitted with front fog lights or rear fog lights must not operate the fog light unless the driver is driving in fog or other hazardous weather conditions causing reduced visibility."

The ASB noted that the Australian Road Rules are very prescriptive in relation to the use of fog lights and considered that the conditions shown in the advertisement while the vehicle was being driven could be described as dark but not hazardous or foggy. The commercial was deemed to breach the FCAI Code, and Chrysler was required to modify the advertisement to ensure it no longer breached the FCAI Code.

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