Law Briefs: Finding an acceptable advertising standard

By DONALD SCHNELL

The advertisement has been controversial. A fire rages in a tall building. Onlookers are helpless as a dog plunges from a window to what appears certain death.

Enter the Football Kingz goalkeeper, who dives towards the dog, plucks it from the air. The crowd heaves a collective sigh of relief and the goalkeeper punts the dog spiralling back into the air.

Another version has the dog suffering an even worse fate as the goalkeeper chooses to catch a soccer ball. Some animal lovers have complained angrily.

Shocking and offensive or just a bit of humour?

It is a moot point whether any publicity is good publicity for the advertiser. Will the advertisement sell more season tickets for the Kingz? Or do advertisements which offend a number of people harm the image of the advertiser or the product?

Consumers and competing businesses are possibly more concerned about advertisements that mislead the consumer or that portray a product or service in a way that gives a false or misleading impression, rather than those that shock or cause offence.

What remedies are available to members of the public who are offended by an advertisement or feel that it is misleading? What are the legal consequences for advertisers?

The main piece of legislation regulating advertising in New Zealand is the Fair Trading Act 1986. The act prohibits conduct in trade that is misleading or deceptive. It is enforced by the Commerce Commission, which has the power to investigate possible breaches and take action against offenders.

The commission has not restricted its investigations to advertising in traditional media. After a recent investigation, a company was fined $7000 in the Auckland District Court for breaching the Fair Trading Act by making misleading claims about cellphones on its website. The website did not disclose compulsory additional costs and conditions for certain prepaid cellphone packages.

To complement the act, the Advertising Standards Authority (ASA) has developed Codes of Practice which cover the spectrum of advertising activity. These include a Code of Ethics which covers fairness, respect for people and honest practice, as well as codes for specific categories of advertising, such as financial advertising, weight loss advertisements, comparative advertising and advertising to children.

Media members of the ASA have undertaken not to publish or broadcast any advertisement which breaches a Code of Practice.

The codes are administered by the Advertising Standards Complaints Board, an independent self-regulatory body which adjudicates complaints about advertisements which may be in breach of the Codes of Practice.

Complaints must relate to the alleged breach of a Code of Practice. Complaints should be made in writing, giving details of the advertisement and stating when and where it was published or broadcast. The chairman or chairwoman of the board determines whether the complaint should be considered and the complainant is advised of the outcome.

In lodging a complaint with the Complaints Board, the complainant must accept that he or she is excluded from using other avenues to pursue the complaint. In some circumstances there is a right to appeal against the board's decisions to an Appeal Board.

Some areas of advertising are more sensitive than others. The Complaints Board has recently considered several complaints concerning weight loss advertisements: A complaint about an advertisement for a weight loss product was not upheld. The advertisement depicts a boy winning a race at a school athletics meeting. On being told by a teacher that his father would be very proud of him, the boy says that his father was unable to be present. But then, with a nod of his head, the boy acknowledges his seriously obese father sitting in a car, before going off to play with his friends.

A complaint about a different advertisement for the same product was upheld. The advertisement shows a slim young woman, apparently naked, with long hair covering her breasts. The headline states: "But first, I would just like to tie my own shoes" and across the bottom of the image it states "Lose Weight. Gain Life." The board's view was that the image was gratuitous and the advertisement inappropriate.

The ASA is sometimes called on to decide where the border lies between humour and offensiveness:

A television advertisement features a jogger helping himself to a drink from a bottle of milk at the entrance to a farm over a period of several days. Eventually the frustrated farmer catches a glimpse of the jogger as he runs off. The next morning the farmer places a bottle of milk at the gate, and after the jogger has emptied the bottle, the farmer pats his prize bull, milk bottle in hand, saying "Well done, Boris!"

The board refused to uphold a complaint that the advertisement was in bad taste. It agreed that the advertisement was borderline but noted that it was targeted at an adult audience and had a self-imposed, 8.30 pm restriction on screening times. In the board's view it was a "Kiwi joke."

According to CM Research statistics it was rated second only to the Toyota Hilux "Bugger" advertisement by the New Zealand public, and therefore did not seem to cause widespread or serious offence.

The board will uphold a complaint when it is satisfied that the advertiser has breached a Code of Practice and not merely when someone is offended.

Donald Schnell is a law analyst with CCH (New Zealand) Ltd.

* CCH is a tax, business and employment law publisher based in Auckland. For further information, visit the CCH website or phone 0800500224.


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