Australia: Ad Standards Community Panel determination confirms that law reflects prevailing community standards on health and safety

Last Updated: 15 September 2018
Article by Ian Robertson, Sarah Butler and Rebecca Kazzi
Most Read Contributor in Australia, August 2018

A recent decision of the Ad Standards Community Panel serves as a reminder to advertisers that advertisements should not depict an activity which would breach a law in any Australian State or Territory in which the advertisement is broadcast.

The advertisement in question, to promote The Smith Family's "Back to School Appeal", shows a mother dropping her daughter off at school. The mother stops her 4WD car next to a school pedestrian crossing. The mother watches a happy group of children walking supervised over the pedestrian crossing. She then notices a child who appears sad and poverty-stricken crossing the road by herself without holding the hand of an adult. A voiceover states "Right now, one in seven young Australians are living in poverty".

In making its recommendation that the Community Panel should find that the advertisement contravened section 2.6 of the AANA Code of Ethics (Code of Ethics), the Ad Standards Independent Reviewer stated:

... it is virtually impossible to imagine what could better constitute a reflection of prevailing community standards on this issue of road safety than the Road Rules ... made by a government which has been elected by the community.

Section 2.6 of the Code of Ethics

The Code of Ethics establishes a system of competitor and consumer complaints for advertising.

Relevantly, section 2.6 of the Code of Ethics provides that advertising and marketing material should not "depict material contrary to prevailing community standards on health and safety".

"Prevailing community standards" are defined in the Code of Ethics as:

... the community standards determined by the Community Panel as those prevailing at the relevant time in relation to Advertising or Marketing Communications ... and having regard to Practice Notes published by AANA and any research conducted by Ad Standards.

The Community Panel takes the view that advertising which shows people engaging in behaviour that would breach the law is contrary to prevailing community standards on health and safety.

Initial determination of the Community Panel

Complaints were made by consumers to the Community Panel about The Smith Family's advertisement, with some of the complainants expressing concern that the advertisement depicted material contrary to prevailing community standards on health and safety.

The key issue of concern was that the advertisement showed the mother breaking the NSW Road Rules by stopping her vehicle next to a school crossing.

The Community Panel acknowledged that road safety is a significant community concern. However, in its initial determination, it dismissed the complaints noting that the depiction of where the woman parked was brief and not the focus of the advertisement.

Recommendation of the Independent Reviewer

If a complaint is dismissed - as in this case - the original complainant(s) can apply for a review of the Community Panel's decision. A review will then be conducted by the Independent Reviewer and, following an investigation, it will make a recommendation to the Community Panel as to whether the Community Panel's determination should be reviewed or confirmed.

In its review of The Smith Family's advertisement, the Independent Reviewer indicated that the Community Panel should find that a depiction of a breach of a health or safety law in an advertisement is a breach of section 2.6 of the Code of Ethics, unless "... the Community Panel can offer conclusive evidence for the view that there is not a breach of the prevailing community standards."

Having conducted an assessment of the NSW Road Rules, the Independent Reviewer recommended that the Community Panel reconsider its determination. In its recommendation, the Independent Reviewer remarked that there were a number of safety issues in the advertisement, namely, the 4WD vehicle stopping in front of the school pedestrian crossing potentially blocking the line of sight of small children, the young girl crossing the road on her own while looking down and not at the traffic, and a child under the age of 10 not holding the hand of an adult when crossing the road.

Final determination of the Community Panel

In light of the Independent Reviewer's recommendation, the Community Panel made a determination that the advertisement did breach section 2.6 of the Code of Ethics, finding that the depiction of a vehicle stopping within 20 metres of a pedestrian crossing was a depiction of material contrary to the prevailing community standards on health and safety.

A copy of the decision can be found here.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Ian Robertson
Sarah Butler
 
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