Advertisers use stereotypes in advertising to connect with a target demographic of consumer. But is this allowed? Below we look at the restrictions on using these kinds of portrayals to promote goods or services.

Advertisements and the Australian Consumer Law

Advertisements are subject to the Australian Consumer Law but also to different self-regulated codes and community standards. These codes include the Australian Association of National Advertisers Code of Ethics and Codes relating to various industries and groups such as:

  • Food and beverage;
  • Motor vehicles;
  • Environmental claims; and
  • Children and young people.

Community standards are also relevant to how marketers can depict people in advertisements, and need to take steps ensuring their ads are:

  • Legal,
  • Truthful,
  • Honest, and
  • Created with respect to the rules of competition.

Objectification in Advertising

Even with these standards and regulations in place, some businesses try to push the boundaries. For example, a 2010 Brut advertisement received complaints because it included close-ups of a woman’s body and crotch, accompanied by sounds that appeared to be loud groans from the men in the advertisement. The complaint was made to the Advertising Standards Board (“the Board”) on the basis that it depicted material that discriminates against a section of the community based on their sex. The Board found that the advertisement was slightly menacing and demeaning to the woman and objectified her, consequently breaching the Code of Ethics.

Objectification is a common issue in ads presenting an individual as an object with no personal qualities or humanising elements. For example, focusing on a person’s body parts, such as a woman’s legs. The Code of Ethics restricts advertisers from using sexual appeal in a way that is exploitative or degrading to any individual or group of people.

Discrimination in Advertising

With regards to stereotypes, businesses need to be careful that they don’t inadvertently use discrimination as a way of promoting their product or service. Discriminatory advertising is unlawful under the Racial Discrimination Act 1975 (Cth) and anti-discrimination Acts in each state and territory.

Take Your Hair to Paradise, and Your Shampoo to the Advertising Standards Board

Recently, the Board received complaints about an advertisement for Head and Shoulders shampoo. The online advertisement, entitled ‘Take your Hair to Paradise’, depicts a woman in a rainforest washing her hair while a tribesman wearing body paint and traditional dress describes what using the shampoo feels like. The complaints overall discussed: 

  • The offensive depiction of the tribesman; 
  • The hypocrisy of the jungle setting when the shampoo industry causes deforestation to use palm oil; and 
  • The exploitation of the use of South American culture to promote the sale of shampoo.

The Board reviewed the complaints and Head and Shoulders’ response. They determined that Head and Shoulders had not breached the relevant section of the Code because: 

  • The advertisement described the jungle as a ‘mystical jungle’; 
  • The advertisement didn’t depict the tribesman in a negative or demeaning way; and 
  • The advertisement didn’t represent indigenous people in any particular way that discriminated or vilified a person on account of race. 

The Board also determined that this narrative was intended to be humorous in the context of the rest of the advertisement.

The Australian Outback and Aboriginals in Advertising

In contrast, the Board made a determination against the advertisers of a Subaru Outback motor vehicle. Here, the closing male voiceover in a strong Australian accent said, ‘to pay more for a car this good would be just highway corroboree.’ 

A corroboree is a serious and central part of Aboriginal culture and in this context, Subaru used the word because it rhymed with robbery. It did not have any connection to the advertised product. The Board noted that while the advertisement was not intended to be offensive, the overall assessment was that it did depict material that discriminated against the Aboriginal people on account of their race.

Key Takeaways: How to Comply With the Code

Clearly advertisers can use stereotypes in advertising without breaching the Code, but it is important for businesses to maintain respect for community standards. 

The best way businesses can make sure that they don’t breach the Code of Ethics and objectify any individual is always to show a person’s whole body, and not just focus on parts. If an ad shows a person naked or in a bathing suit, it needs to be in the context of the advertisement and product. 

With regards to discrimination, businesses need to be careful of depicting any race or minority in a way that will vilify them on account of their race or minority status. Any use of a culture in a negative way or that would likely be offensive or demeaning needs to be re-evaluated.

Questions? Get in touch with LegalVision’s advertising and consumer lawyers on 1300 544 755.

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