Sex still sells, but who’s on top?

An Examination of Current Prevailing Community Standards on Sexualization and Gender Equality in Advertising

All advertising, whether it be delivered by way of print, internet or broadcast, must comply with the Australian Association of National Advertisers’ Code of Ethics. The Code ensures that advertisements are, amongst other things, prepared and broadcast in accordance with the prevailing community standards at the time. This standard is judged by the Advertising Standards Board.

In particular, there are two sections of the Code which deal with issues of the use of gender and sex in advertising; these are sections 2.1 and 2.3 (reproduced below).

• Section 2.1 - Advertising or Marketing Communications shall not portray people or depict material in a way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, sex, age, sexual preference, religion, disability or political belief.
• Section 2.3 - Advertising or Marketing Communications shall treat sex, sexuality and nudity with sensitivity to the relevant audience, and, where appropriate, the relevant programme time zone.

As a member of the public, if you believe that a particular piece of advertising offends a provision of the Code, including the prevailing community standard, you can complain to the ASB about that advertising. Once a complaint is received, the ASB will notify the advertiser and invite it to make a submission in response to the complaint. The ASB will then assess the complaint and will either dismiss it or uphold it. An advertiser may pull an advertisement at any time and in fact some do as soon as they are notified about a complaint. This is not necessarily because they believe the ASB will uphold the complaint, but because they may not want to be associated with the adverse publicity of the hearing process.

The ASB, in enforcing the Code, draws a distinction between the use of gender, sex and nudity as part of an advertisement, and where it forms part of the product itself. For example, in 2008 ‘CLEO’ magazine ran a competition where entrants could win the use of a male “slave” for a day. The advertisement complained of was a radio ad featuring a female voice asking “OK, let’s check the list...bushes trimmed? Dog’s walked? Leaking tap fixed?...My full body wax?...Just kidding – let’s get you into a singlet and out in the garden, cowboy.” The ad received complaints which included this one: “The advertisement is out of step with community values, and objectifies males in an inappropriate light. Such advertising is frequently objected to when women are involved or objectified and the same standards apply to males.” The ASB considered that the complaint was chiefly directed at the type of prize on offer (or the product), that of having a male in servitude, rather than anything arising out of the advertisement itself. Despite the advertisement containing a mild element of vouyerism (eg. “let’s get you into a singlet and out in the garden, cowboy”) there was nothing in the advertisement which offended the Code and it was dismissed. A similar complaint and result was found in a complaint about the rotating billboard advertising the “Men’s Gallery / Centrefold Lounge” located at Richmond train station. In that case, the advertiser’s response, with which the ASB ultimately agreed, pointed out that the women featured on the billboard were decidedly more “dressed” than many women featured in advertising for underwear or swimwear.

Perhaps unsurprisingly, the use of male and female nudity (including what might be called semi-nudity) in advertising is a frequent basis for complaint. However, as the following cases demonstrate, nudity will rarely offend the prevailing community standard where it is used in an appropriate context, such as in an advertisement for swimwear or underwear. The ASB seems to take a firm line that an advertiser is permitted to show the product which is being advertised, and this may prove difficult if the product is underwear and models are required to be fully dressed.

In the case of Icon Clothing Pty Ltd, the product was denim pants and jeans. The advertisement was a bill board which featured the back of a young woman wearing a bikini top and a pair of cut-off denim shorts which revealed the lower part of her buttocks. The complaint was made on grounds under section 2.3 of the Code. The ASB considered that the image was relevant and appropriate to the product being advertised and consequently dismissed the complaint. The same result was seen in respect of a complaint made about a billboard featuring a young man reclining on his side wearing only a pair of Holeproof briefs. Again, the ASB considered that the image of the model wearing only the underwear was relevant and appropriate to the product being advertised.

Even were the use of nudity in an advertisement might have only a passing connection to the product being advertised, it is still unlikely to offend the prevailing community standard. Take, for example, a billboard for a gambling website which featured two women in bikinis holding up a sign which read “$500 free bet. All you have to do is sign up now.” The complaint was made with respect to the use of nudity in the ad. The advertiser’s response was that “the use of the two ladies wearing a bikini is representative of Australia’s care free beach loving lifestyle and it was not intended to degrade women.” Leaving the advertiser’s intentions aside for the moment, the connection between a gambling website and Australia’s care free beach loving lifestyle may best be described as tenuous. However, the ASB by majority dismissed the complaint on the basis that wearing a bikini was not the same thing as implying sex, nor did it sexualise the content.

In fact, the only recent advertisement to which a complaint made under section 2.3 of the Code has been upheld, was in the case of a television advertisement for Levi Strauss jeans. The advertisement featured a young couple kissing and gradually undressing as they move throughout an apartment. At one point they are featured kissing without shirts on, the female wearing a bra with her back to the camera. The advertisement ends with a pair of jeans being thrown on the floor. The advertisement was shown on Pay TV on a Sunday afternoon during a sports program, a time of day when children may have been watching television. The ASB considered that the ad featured a strong sexual theme, despite the fact that no overt nudity or sex act was depicted. Ultimately the Board considered that whilst the content of the advertising would not have offended a mature audience, on this occasion it was broadcast to a young audience and the because of the broadcast time, the advertisement had not treated the portrayal of sex with sensitivity to the relevant audience (ie. one including children). The complaint was upheld.

An examination of some other recent decisions of the ASB reveals that the prevailing community standard tolerates far more with respect to the men than it will when it comes to women. Take, for example, the television advertisement for Holeproof’s Rio Multipack underwear. The advertisement featured radio personality Fifi Box, standing next to a male model wearing seven pairs of Rio underpants on top of each other, one for each day of the week. The model removes one pair for each day of the week which Fifi mentions, starting with Monday. When Fifi gets to Sunday, the model hesitates because he is down to his last pair. Fifi urges, “Come on you, get ‘em off!” and the model beings to slowly remove the last pair as the camera crosses to Fifi watching and commenting “Oh, I love Sundays...” This cheeky ad was enough to raise the ire of at least one member of the public who made the complaint based upon section 2.1 of the Code, pointing out that were the roles reversed, and it was a woman told to undress by a man, society would not stand for it. The complainant demanded, if you’ll pardon the pun, a tit-for-tat approach be adopted by the ASB with respect to the sexes. The complaint was dismissed without any great discourse other than to say that the advertising was not demeaning towards men. The Board did not comment upon the question of whether the same result would have been reached had the roles in fact been reversed.

A similar complaint was made with respect to a television advertisement for the Cancer Council of NSW’s “Girls Night In”, which featured a group of girls arriving at a house for a girls’ party. The hostess takes one girl’s coat and throws it into a hall cupboard where a young man is seen bound and gagged to keep him out of the way. Again, the ASB dismissed the complaint on the basis that the depiction was not discriminatory to men generally and was intended to be humorous and did not present or portray violence, according to prevailing community standards.

Despite the seeming double standard adopted in the Rio Multipack and “Girls Night In” decisions, it is simply in line with the prevailing community standard which the ASB is required to uphold. It is a matter of fact that the community will tolerate, to a large degree, good humoured sexualised banter when it is directed at men, but will almost never tolerate the same directed to women. In other words, there is no equality in terms of the treatment of both sexes in the community, and therefore there can be no expectation that there should be equality between the sexes when applying the prevailing community standard and deciding cases of this nature.

There are probably two key conclusions which can be drawn based upon the outcomes of the complaints mentioned above. Firstly, as a general proposition, the prevailing community standards are very low when it comes to the use of sex and nudity in advertising. An advertiser can get away with almost anything provided it considers its audience and restricts the time of a broadcast to a timeslot which is appropriate for the audience. Secondly, there is no gender equality when it comes to the treatment of sex and gender in advertising, providing that the intention is at humour. “Mistreatment” (in contrast to expressions of actual physical violence) of males in situations involving comical or sexual servitude appear to be perfectly acceptable, despite the fact that the reverse would doubtless be unacceptable.

If you have any questions about this article or in relating to advertising standards generally, please contact Adam Ghijben on adam.ghijben@ekmlegal.com.