ASB Research Report Research ASB Research Report www.adstandards.com.au Discrimination and Vilification in Advertising Discrimination and Vilification in Advertising in Vilification and Discrimination Level 2, 97 Northbourne Avenue, Turner ACT 2612 Produced for the Advertising Standards Bureau by Ph: (02) 6262 9822 | Fax: (02) 6262 9833 Dr Fiona Giles, Sydney University Jenni Whelan, Discrimination and Rights Education (DARE) March 2009 March 2009 March CRE8IVE 0609-8736 CRE8IVE Research Report Discrimination and Vilification in Advertising Produced for the Advertising Standards Bureau by Dr Fiona Giles, Sydney University Jenni Whelan, Discrimination and Rights Education (DARE) March 2009 DISCRIMINATION AND VILIFICATION IN AdverTISING ii Copyright © 2009 Advertising Standards Bureau. All rights reserved. Printed in Australia Published by the Advertising Standards Bureau, Level 2, 97 Northbourne Avenue, Turner, ACT, 2617 Advertising Standards Bureau CONTENTS CEO introduction 1 Part One Key principles regarding the application of relevant provisions of the Code to the work of the Board 4 Guidelines for use by Advertising Standards Board when determining cases involving discrimination and vilification issues 4 Part Two List of twenty advertisements considered in this paper 8 AANA Code of Ethics 9 Part Three Legal implications of advertising in relation to discrimination and vilification 1. Introduction 12 1. Rationale for the development of this research report 12 2. Overview of the legal concepts of discrimination and vilification in applicable Commonwealth, State and Territory legislation which are relevant to the duties of the Board 12 iii 1. Preliminary comments regarding the interplay between the legal concepts of discrimination and vilification in applicableC ommonwealth, State and Territory legislation and relevant to the duties of the Board 12 2. Summary of the legal concepts of discrimination and vilification which are relevant to the duties of the Board for the purposes of Section 2.1 of the Code 18 3. Analysis of twenty advertisements provided by the Advertising Standards Bureau in accordance with key principles that the Board should consider when reviewing advertisements 19 1. Preliminary comments regarding the Board’s duties when considering complaints relating to discrimination and vilification 19 4. Guidelines that draw together key principles regarding the application of the relevant provisions in racial discrimination and vilification legislation to the work of the Board 20 5. Annexure A: Board decision template 21 6. Endnotes 22 Research Report DISCRIMINATION AND VILIFICATION IN AdverTISING Socio-ethical implications of advertising in relation to discrimination and vilification 1. Introduction 25 1. Objectives of report 25 2. Structure of report 25 3. Scope of report 26 4. Approaches to media ethics 27 5. Audience reception theories 28 2. Conclusion 30 1. Summary of analysis of advertisements 30 2. Challenges 31 3. Checklist for socio-ethical advertising content 31 4. Combining the approaches 34 3. Appendix 34 1. The ethical risks of stereotyping 34 2. Modifying stereotypes 36 4. Bibliography 37 Part Four Analysis of twenty advertisements from a: iv — legal perspective 41 — socio-ethical perspective 88 Part Five Peer review 118 Advertising Standards Bureau CEO introduction Following a request from Advertising Standards Board The paper includes: members, the Advertising Standards Bureau commissioned • Key principles regarding the application of the relevant research into discrimination and vilification in advertising. provisions of the Code to the work of the Board; and • Guidelines for use by Advertising Standards Board Two consultants were engaged to provide complimentary when determining cases involving discrimination papers from a legal and a socio/ethical perspective. and vilification issues. 1 The papers each provide: The researchers also conducted a short peer review which • A plain English overview of the legal or socio/ethical is included in the package. concepts of discrimination and vilification; • An analysis and discussion of twenty advertisements This is the first of whatI envisage as a suite of research in terms of discrimination and vilification issues; and papers designed to provide information and guidance to • A guideline based conclusion that draws together the Board. In addition, I hope that the information included major points in the paper, and includes “tips and traps” here is interesting and useful to academics and others. for the Board when making determinations involving discrimination and vilification issues. Fiona Jolly Chief Executive Officer We hope this document will be helpful to advertisers March 2009 in designing campaigns. This research package also distils information from both papers to provide a brief reference document for Board members when making determinations involving discrimination and vilification matters. Research Report DISCRIMINATION AND VILIFICATION IN AdverTISING 2 Advertising Standards Bureau Discrimination and Vilification in Advertising Part 1 DISCRIMINATION AND VILIFICATION IN AdverTISING Key principles regarding the application of relevant provisions of the code to the work of the board 1. Since decision-making by the Board clearly affects the Guidelines for use by advertising standards rights and interests of advertisers whose advertisements have been the subject of complaint, decisions relating board when determining cases involving to whether an advertisement breaches the Code must discrimination and vilification issues be made in accordance with rules of natural justice. 2. The members of the Board must be unbiased and must S 2.1 AANA Code of Ethics: 4 not have a personal interest in the matter to be decided, ‘Advertising or Marketing Communications shall nor appear as if they bring a prejudice of mind to the not portray people or depict material in a way which decision-making. discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, sex, 3. Each decision-maker is obliged to exercise their own age, sexual preference, religion, disability or political belief.’ discretion and judgement in relation to every complaint considered by the Board. The overarching question for the Board will always be 4. Each decision of the Board must be reasonable and must “does the Board consider that community standards would be based on the evidence provided. be breached?” Nevertheless, it is helpful to apply questions 5. The Board must give all relevant facts or issues which that provide a consistent framework for considering the are relevant to the making of the decision full and proper advertisements that come before the Board. consideration and ignore any irrelevant considerations. Section 2.1 contains four elements that must be established 6. The relevant considerations that the Board must if a complaint is to be upheld. consider are contained in Section 2 of the Code and it is the duty of the Board to apply the Code to the 1. The portrayal of people or depiction of material advertisement and to consider each relevant ground of complaint in turn. 2. In a way which discriminates or vilifies 7. The Board should adhere to a consistent decision- 3. A person or section of the community making procedure when assessing and considering 4. On account of: whether to uphold or dismiss each and every complaint under Section 2 of the Code. The Board should agree a) race, ethnicity, nationality; on and accurately record reasons for determinations so b) sex; that the reasons for each and every decision of the Board c) age; have a logical basis that can be identified and sustained. d) sexual preference; Accordingly, each Board member should be applying e) religion; mutually agreed definitions of the terms of theC ode f) disability; or in each of its determinations. g) political belief Advertising Standards Bureau ParT 1 The current wording of theC ode does not allow the Board Nationality to uphold a complaint on ethical grounds alone. Rather, The status of belonging to a particular nation by origin, it is required to apply the legal standards as a base-line for birth, or naturalisation. considering complaints of discrimination or vilification and then to have regard to additional socio-ethical Sex considerations. The latter is likely to be of greatest importance The status of being a male, female, intersex, trans-sexual in borderline cases. or transgender and of having characteristics attributed to an individual or group because they are male, female, 1. Legal considerations intersex, trans-sexual or transgender. (a) Discriminates and vilifies Age With regard to determinations against element 2 above, The number of years that someone is or characteristics the following summarises the legal concepts of discrimination generally pertaining to a stage or phase in someone’s life, and vilification which are relevant to the duties of the Board or characteristics generally imputed to people of that stage for the purposes of Section 2.1 of the Code. or phase. Discriminates Sexual preference Acts with inequity, bigotry or intolerance or gives unfair, Homosexuality, heterosexuality, bisexuality and unfavourable or less favourable treatment to one person or trans-sexuality. a group because of their race, ethnicity, nationality, sex, age, sexual preference, religion, disability and/or political belief. Religion People’s beliefs and opinions concerning the existence, Vilifies nature, and worship of God, a god, or gods, and divine Humiliates,