Overseas organisations advertising to Australians will now be
caught by various industry codes prescribed by the Australian
Association of National Advertisers (AANA), due to a recent update
to the AANA Practice Note.
In Australia, the AANA has designed and delivered a
self-regulatory system of standards and rules controlling
advertising and marketing communications in Australia. The AANA
Code of Ethics (Code of Ethics) provides the overarching set of
principles with which all advertising and marketing communications,
across all media should comply, and is supplemented by the AANA
Practice Note (Practice Note), which acts as a guide to
understanding the AANA's intent in relation to the Code of
The AANA Practice Note was updated 1 June 2015 and includes a
significant change that will affect overseas organisations that
"direct" their advertising to Australian consumers. The
previous Practice Note stated that the Code of Ethics only applies
where the advertising or marketing communications (under the
control of the advertiser) have an Australian-customer link (which
means any of the customers of the product or service are physically
present in Australia), and which are under the control of an
This meant that if you were a foreign advertiser and you engaged
in online advertising specifically targeted towards Australians,
you would not be caught by the Code of Ethics, as long as you were
not under the control of an Australian company.
The new Practice Note has been updated to capture any
advertising or marketing communications where there is an
Australian-customer link and the advertising or marketing
communications are directed to those customers. Directing
advertising to Australian customers requires more than simply
placing an advertisement on an international website. If the
website has a country drop down list that makes it specific to
Australia, the ad is placed on a ".com.au" website, an
"au" webpage of a ".com" website or is
addressed to Australians through the wording or content of the ad
then it is more likely to be considered to be "directed to
Advertisers operating overseas that wish to advertise in the
Australian market are already required to comply with the
Australian Consumer Law and other industry specific
advertising laws and codes. Now these companies must ensure they
also comply with the Code of Ethics and all other related codes
including the AANA Code for Advertising & Marketing
Communications to Children and the AANA Food & Beverages
– Advertising & Marketing Communications Code.
If advertisers do not comply with the Code of Ethics they may
receive a non-binding determination from the Advertising Standards
Board that they are in breach and are required to moderate or
remove the ad. The greater risk is often the social
backlash/reputational damage advertisers will suffer. In addition,
advertising that is in breach of the Code of Ethics due to issues
of truthfulness, or accuracy will also be in breach of provisions
of the Australian Consumer Law, and the attention sparked
by a complaint to the Advertising Standards Board could also result
in an investigation by the Australian Competition and Consumer
Commission (an Australian statutory consumer watchdog), court
action and fines.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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