Insights into litigation, sports law, media and legal culture

ASB ‘10 most offensive ads of 2015’ missed Fifty Shades of Greyhound

The Advertising Standards Bureau has revealed its 10 most offensive ads so far for 2015. The list has been compiled by popular vote, namely, by number of complaints.

Summary of 2015 Advertising Standards Bureau Complaints

Of the 2700 complaints made between January and June, a Holden TV ad was the most complained about advertisement, featuring a young boy mimicking his father and using the phrase ‘bloody caravans’.  Complainants were concerned about the child swearing. However the Advertising Standards Board (the decision making arm of the Bureau) found that ‘bloody’ was a commonly accepted colloquial term not said aggressively and dismissed the complaints.

The second most complained about ad was for a dating site for married people (Ashley Maddison), which featured men singing “I’m looking for someone other than my wife”. The Board upheld complaints about this ad for being discriminatory towards wives.

Complaints about sex, sexuality and nudity also feature in the list. Scoring high in the complaints department was an ad for the streaming service Stan, in which Rebel Wilson refers to her “big pussy” before the camera reveals a cat in her lap. The board dismissed this complaint because it was rated M and the slang term “pussy” was considered appropriate for a mature audience.

Other ads on the list received complaints for showing a woman licking chip flavouring off a man’s lips, an ad depicting two men kissing, and a poster showing a naked male torso with a hemp leaf covering the genitals. In each of these cases the Board decided the level of sex, sexuality and nudity used was not inappropriate for the intended audiences and dismissed the complaints.

In fact, the Board dismissed all but two complaints. This indicates a robust attitude to advertising hardly surprising given that the Advertising Services Bureau is a self-regulating body. It is not an independent regulator.

This means the cynical amongst us will suggest that, of course, a decision making body which is essentially part of the advertising industry, charged with the task of ensuring member compliance with the Australian Association of National Advertisers (AANA) Code of Ethics, is likely to look after its own.

I have not previously subscribed to this view for three reasons. First, free speech in a robust democracy should accept a broad range of views, and it is not our collective interests to have any advertising regulator (independent or not) act as the Politically Correct Police.

Secondly, the Board decisions I have reviewed over the years have for the most part seemed sensible, whereas a number of the complaints are not (ergo the Lynx ad in the 2015 list which received 62 complaints for a homosexual kiss said by one complainant to represent “immoral, indecent behavior”).

Thirdly, industry compliance with Board decisions is strong, indicating a respect for authority whether it is of a self-regulating nature or not.

The Board’s approach to Sportsbet’s advertising

My support for the Advertising Standards Board’s ‘practical approach’ has, however, been tested by the nature of its dismissal of Sportsbet’s Fifty Shades of Greyhound advertisement earlier this year.

Before talking about the Fifty Shades of Greyhound advertisement, let’s consider Sportsbet’s approach to advertising generally, and how the Board deals with these sorts of advertisements.

Charlie Pickering delivered a savage but highly amusing indictment of Sportsbet’s advertising on his ABC television program a few weeks ago. It is definitely worth watching here.

In short, Sportsbet online or television ads are intended to push the envelope. They work squarely on the basis that the target market essentially consists of blokes laughing at (usually fat) blokes sitting on the toilet or by the pool using their smartphone to bet ‘on the nose’ of the 6th at Pakenham.

Many of the ads involve scantily clad women because, of course, blokes betting on their smartphones like scantily clad women.

I have laughed at some of the ads myself, so I am not on my high horse. But the ads are definitely in the genre of broad Australian humour where you do not want the Politically Correct Police anywhere near your TV or laptop when they are shown.

The Board considers prevailing community standards and relevant audience when assessing whether ads cross the line or not. So, the Board tends to take a lenient approach to Sportsbet ads. In fact, so lenient is the Board’s approach to Sportsbet ads, that of the six and a half pages I have printed out of Sportsbet ‘cases’ before the Board since 2009, every single one has been dismissed, except for two.

Of all the Sportsbet ads, which two were in the ‘not good enough’ category?

The first was a 2011 ad involving an image of Julia Gillard lying across Bob Brown’s lap: he appears to be about to spank her. The image is obviously fake and is framed by a gilt picture frame. The accompanying text reads, “Sportsbet.com. Our Spanking New Tax Beater” and there are odds on whether the Carbon Tax bill will pass through the Senate.

The second was a 2012 SMS notification appearing while playing games on a phone which said: “Bet Every Race, Every Day”.

What did the Fifty Shades of Greyhound involve?

Fifty Shades of Greyhound was an online advertisement Sportsbet timed with the launch of the movie Fifty Shades of Grey. The ad was clearly designed to provoke comment. For proof of this, look no further than Sportsbet’s press release: “Sportsbet is giving doggy style a whole new meaning in a production that will leave you hot under the collar,” said sportsbet.com.au’s Will Byrne.

Even B&T Advertising, the industry insider publication which gave the press release some airplay, found it hard to get a grip on the ad, heralding it with the byline: Sportsbet launches creepy ’50 Shades of Greyhound’ spoof. The Herald Sun described the ad as ‘controversial’, and the Daily Mail went a touch further with ‘Is this 50 Shades of WRONG?’ Both articles contain links to the ad.

The complaints made to the Board describe the ad and the apparent issue(s):

“The ad suggests that a woman has sex with a dog, the ad then proceeds to show her dressed in a rabbit costume and being chased on a race track by the dog she has been suggested to of (sic.) had sex with, showing her as “live bait” for the dog.”

“The video is a parody of the ‘fifty shades of grey’ film but shows an erotic relationship between a woman and a greyhound. It is incredibly sexist, offensive, against good taste and not even relevant to their marketing campaign. If it is designed to suggest women dabble in gambling on greyhounds it misses the mark in being tailored to titillating men instead. It’s disgusting.”

“Horrendously sexist and demeaning to women and implies a sexual, subservient relationship with a dog.”

“The innuendo of bestiality, exploitation of animals.”

“It is offensive and demeaning to women. It is beyond bad taste. 51% of the population should not be demeaned and degraded in public for the enjoyment of the other 49%.”

Sportsbet responded by claiming that the ad did not abuse, malign or disparage women. Instead, it was an obvious and over the top parody of the Official Trailer, in which the main character was also a woman. It said the connection between “grey” and “greyhounds” was intended to show a humorous, unrealistic alternative. It denied the ad showed an erotic relationship between a woman and a greyhound on the basis that it was only “cheekily suggestive” and done in a “light-hearted manner”. It regretted if the jovial nature of the ad was misconstrued.

In particular, Sportsbet also stated:

We note that Greyhound Racing Victoria (GRV) supported the making of the Advertisement. GRV assisted Sportsbet with sourcing the greyhound through the Greyhound Adoption Program, and assisted in arranging access to Sandown Racecourse in order to film the Advertisement”.

The applicable ground rules: the AANA Code of Ethics

The relevant sections of the AANA Code of Ethics prohibit advertising or marketing communications portraying people or depict material in a way that discriminates against or vilifies a person or section of the community on account of, amongst other things, gender.

So too, sex appeal cannot be employed in a manner that is exploitative and degrading of any individual or group of people.

Finally, sex, sexuality and nudity must be treated with sensitivity to the relevant audience.

A summary of past determinations provided by the Bureau provides examples of unwelcome sexual conduct which can include lewd comments, smutty jokes, asking for sex, and displays of offensive material.

In considering issues such as stereotyping and objectification, the Board says it will consider the role of humour, but with regard to the following issues:

  • If there is a negative stereotype, is it done humorously and in a lighthearted, comfortable tone and clearly produced by a group belonging to, or sensitive to the same group?
  • If the advertisement is intended to be humorous, is the humour successful and relevant? A negative depiction of a group of people in society may be found to be in breach even if humour is used. The depiction will be consideration negative if a negative impression is created by the imagery and language used in the advertisement.

The Bureau also suggests avoiding “wedge advertising” where an advertisement promotes the interests of one population group at the expense of another group.

The Board’s decision

The perfunctory nature of the Board’s decision is the most disappointing aspect. Other than a recitation of the background, there is little reasoning whatsoever in support of its dismissal of the complaints. There is certainly no analysis of the AANA Code of Ethics, or attempt to deal with the matters set out above.

The Board’s decisions concerning Fifty Shades of Greyhound can be found here and here.

So what did the Board say? It noted that the ad was viewed via social media (Facebook, Twitter) and that it featured a parody of the Fifty Shades of Grey movie trailer.

The most detailed component of the reasons is this:

In the current advertisement the Board noted that whilst there is a suggestion of an intimate relationship between a woman and a dog the parody is very clear and is clearly meant to be funny and that the actual content of the advertisement does not depict any sexual activity. The Board noted that bestiality is illegal and that the majority of the community would find any suggestion of bestiality to be distasteful and inappropriate however the Board considered that in the context of a parody of a current movie promotion the advertisement is not of itself discriminatory towards of or vilifying of women.”

I have to say that I read this and then called to mind Jon Stewart and his new segment inspired by Rachel Dolezal, who was recently revealed to be white despite posing as African-American for years. “Whaaaaaaat!?” “Whaaaaaaat!?”

Bestiality is illegal. Any suggestion of bestiality would be distasteful and inappropriate. Yet the Board found there IS a suggestion of an intimate relationship between a woman and a dog. And it is clearly MEANT to be funny. Sexual activity between a woman and a dog is only suggested. It is not depicted.

Where is the analysis of the humour used? For instance:

  1. Was the humour lewd or smutty and therefore potentially unacceptable?
  2. Was the humour produced by women (unlikely)?
  3. What is the impact of such humour being deployed for a male target market?
  4. Was the humour successful and relevant?
  5. Did the humour create a negative impression?
  6. Was the humour intended to promote the interests of one population group at the expense of another population group?
  7. Yes, it might have been a parody, but what is the distinction between a parody of, say, two people engaging in consensual sex rather than a suggestion that a dog and a woman are doing so?

Now let’s turn to the question of live baiting. In contemplating community standards, including how the community might regard the judgment of bodies such as the GRV (before its recent overhaul), these attitudes are likely to have changed depending on whether the ad was shown before or after the Four Corners program. I therefore read the determination with an expectation that it was delivered before the Four Corners program, because this might explain the relaxed attitude towards an ad about a woman in a rabbit costume being chased around Sandown racecourse by a greyhound dog.

How wrong I was. The decision was delivered after the Four Corners program. Here is what the Board stated in its reasons about this issue:

“The Board noted in one scene the woman is wearing a rabbit costume and is shown being chased by the dog at a greyhound racetrack. The Board noted the current community concern regarding greyhounds and live baiting but considered that the advertisement is not suggesting that the woman is live bait but that she is playing with the dog by dressing up in a rabbit costume.”

“Whaaaaaaat!?” “Whaaaaaaat!?”

Finally, the Board considered that in the context of an advertisement appearing on the internet via YouTube and the advertiser’s own website the targeted and likely audience would be adults

All I can offer to those who made the decision are the following two words: ‘Teenage Boys’.

I would then like to offer a further sentence: ‘What might be the effect of the Fifty Shades of Greyhound advertisement on, say, the impressionable minds of teenage boys as they develop their attitudes towards women?’

Finally, the Board suggests that the advertisement does treat the issue of sex, sexuality and nudity with sensitivity to the relevant audience.

Perhaps this is because the woman was not naked with the dog.

Conclusion

By way of constructive feedback, I suggest that it is one thing for a self-regulator to take a robust approach to advertising.

It is another for its Board to dismiss complaints to apparently controversial advertisements like this without any attempt to grapple with issues of objectification and gender stereotyping.

Depictions of women in advertising require more than an assessment of whether they are wearing clothes or not. Attempted humour does not cure all ills.

Perhaps the Fifty Shades of Greyhound advertisement was on the right side of the line. However, regulators (whether they are self-regulators or independent) should in my view provide detailed reasons capable of guiding, in this case, advertisers as well as consumers about where the line should be drawn in relation to societal expectations of advertising.

By not doing so, there is a risk of cynicism from complainants who have bothered to write in, as well as from those of us who review these determinations with interest.

Of course, I am mindful that members of the Board come from all walks of life and most are fortunate enough not to have been lawyers. However, as we look to the balance of 2015, it might be useful for the Bureau and Board to have a think about what message it wants to send by the nature of its determinations.

In other words, the Bureau is more than a repository of complaints about advertisements. How it deals with them is just as important.

Your say

You can sense my views.  Now it is your turn.  Be honest.  It is completely fine to disagree with me!

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