Most people have heard the saying “sex sells”. But when it comes to advertising and marketing communications to Australian consumers, brands, influencers and agencies should be aware that section 2.4 of the AANA Code of Ethics (“Code”) addresses the use of sexual imagery in advertising, and this extends to content created by the brand’s chosen influencers.
Am I required to comply with the AANA Code of Ethics and how do I protect my brand?
The Code applies to all advertisers and marketers who promote brands, products or services to Australian audiences, including through Influencers.
Responsibility for developing content that is aligned to the Code falls to the advertiser, being the brand owner whose products or services are being promoted.
But how do you control content that a third party, like an Influencer, creates for your brand? One way is to have a valid and enforceable Influencer Agreement which places certain obligations on the Influencer to create content that aligns with the Code and which provides the brand with certain rights and indemnities in relation to this issue.
Without an Influencer Agreement, a brand may be left with no option but to report the post on the social media platform and have it removed in cases where the Influencer refuses to create content which is aligned to the Code. The brand failing to do so may result in a complaint to Ad Standards for non-compliance with the Code, and damage to brand reputation which would likely flow from such a complaint.
What if fail to comply with the Code?
If anyone considers a sponsored influencer post contains overtly sexual depictions where the depiction is not relevant to the product or service being advertised, or otherwise for example makes that content available to a young audience, they can make a complaint to Ad Standards. It may then be referred to the Ad Standards Community Panel for adjudication, in which case a determination would subsequently be published in a case report on the Ad Standards website. If the complaint is upheld by Ad Standards, the case report will likely contain recommendations to edit or remove non-complying content.
It is true that no fines or penalties can be issued by Ad Standards for non-compliance with the Code, however damage to reputation is an equally serious issue for brands, influencers and agencies to consider.
What does the AANA Code of Ethics say about sexual imagery in advertising?
Section 2.4 of the Code provides that “advertising shall treat sex, sexuality and nudity with sensitivity to the relevant audience”. The Practice Note in connection with section 2.4 further states that the section “prohibits the harmful use of sex, sexuality or nudity in advertising and requires that such content must be appropriate for the relevant audience. Images that are considered harmful and which are not permitted are those which are overtly sexual and inappropriate having regard to the relevant audience.”
Helpfully, the AANA have released a guide with example imagery demonstrating what is likely to remain acceptable for readily viewable advertising (such as on outdoor advertising or shopfront windows) and what they consider would be unlikely to be acceptable and therefore likely to be upheld if the subject of a complaint. The Practice Note also sets out a non-exhaustive list of what may be considered to be overtly sexual, including for example poses suggestive of sexual position, people depicted in sheer lingerie or clothing where a large amount of buttocks, female breasts, pubic mound or genital regions can be seen, or suggestive undressing.
How to protect your brand and avoid complaints
It is important to consider first and foremost the type of product or service being advertised. If sexual depiction is not relevant to the product or service you wish to advertise, then that sort of imagery should not be used, and you should look for an Influencer who will be unlikely to promote your product or service using that type of imagery.
The context of the ad and its location, the size of the advertisement and the medium in which it appears, the audience it is directed at and their likely response should also all be considered.
In the context of influencer marketing on social media, if the product or service does lend itself to showing more nudity or sexuality in its advertising, age-gating tools on platform can aid in ensuring that children cannot readily view content which might expose them to sexualised images.
As mentioned above, it is always important to have an Influencer Agreement that contains the relevant clauses to protect the brand when it comes to compliance with the Code.
Contact us for more information in relation to compliance with the Code, or to have an Influencer Agreement prepared for your brand.
Information contained within this blog post is intended to be general information only and is not in any way intended to constitute legal advice. You should not act or rely on any information found in this blog post without obtaining prior advice specific to your circumstances.
