Chapter 2 Approaches to advertising regulation
Advertising refers broadly to notices of products or services in a
variety of media – such as magazines and newspapers; television; posters and
billboards; brochures and leaflets; cinema screens; direct and indirect mail;
the internet; commercial e-communication; CD, DVD, video, SMS and fax; and
promotional activities. Outdoor advertising refers to the placement of these advertisements
in public spaces where viewing is unrestricted.
The Australian Association of National Advertisers (AANA) is a peak body
for companies and individuals involved in Australia’s advertising, marketing
and media industry.
The AANA provides the following definition for advertising or marketing:
… matter which is published or broadcast using any Medium
[with the exception of labelling and packaging] in all of Australia or in a
substantial section of Australia for payment or other valuable consideration
and which draws the attention of the public or a segment of it to a product,
service, person, organisation or line of conduct in a manner calculated to
promote or oppose directly or indirectly the product, service, person,
organisation or line of conduct; or
any activity which is undertaken by or on behalf of an
advertiser or marketer for payment or other valuable consideration and which
draws the attention of the public or a segment of it to a product, service,
person, organisation or line of conduct in a manner calculated to promote or
oppose directly or indirectly the product, service, person, organisation or
line of conduct.
Outdoor (or out-of-home) advertising is aimed at consumers when they are
outside their home. Such advertising can be found:
- on walls;
- on billboards,
including digital billboards, and posters;
- on street furniture such
as bus shelters, kiosks, and other forms of public infrastructure;
- in and on taxis, buses,
trams, trucks and train carriages;
- inside public transport
stations and airports; and
- in shopping malls and
While these spaces may be privately owned, their access is generally
unrestricted to the public. Consequently, for the purpose of this inquiry, the
Committee has chosen to refer to them as ‘public spaces’. Such advertising is
not necessarily ‘outdoor’ and is more correctly referred to as ‘out-of-home’
advertising. However, again for the purpose of this inquiry, the Committee uses
the terms ‘outdoor’ and ‘out-of-home’ synonymously to refer to advertising that
is displayed in public spaces.
This chapter discusses the history and practice of advertising
self-regulation in other countries and in Australia. It makes the case that
outdoor advertising should be considered a special category in the regulatory
scheme of advertising.
International comparisons of advertising
Advertising industry self-regulation, including of outdoor advertising,
is the standard practice in the developed world. The International Chamber of
Commerce (ICC) issued the first code of advertising practice in 1937, on which
many current self-regulatory systems, including Australia’s, are based. This
general code has been regularly updated ever since, and separate codes have
been added on sales promotion, sponsorship, direct marketing, electronic media
and environmental advertising, as well as on market research and direct
selling. In 2006, the ICC issued its eighth revision of the Consolidated ICC
Code of Advertising and Marketing Communication Practice.
The basic principles of the ICC Code are as follows:
All marketing communication should be legal, decent, honest
All marketing communication should be prepared with a due
sense of social and professional responsibility and should conform to the
principles of fair competition, as generally accepted in business.
No communication should be such as to impair public
confidence in marketing.
Article 2 of the ICC Code pertains to decency:
Marketing communication should not contain statements or
audio or visual treatments which offend standards of decency currently
prevailing in the country and culture concerned.
Articles 3 and 4 discuss honesty and social responsibility and Article
26 advises respect for self-regulatory decisions. The ICC Code includes
provisions for advertising to children and young people.
The aims of the ICC Code are as follows:
- to demonstrate
responsibility and good practice in advertising and marketing communication
across the world;
- to enhance overall
public confidence in marketing communication;
- to respect privacy
and consumer preferences;
- to ensure special
responsibility as regards marketing communication and children/young people;
- to safeguard the
freedom of expression of those engaged in marketing communication (as embodied
in article 19 of the United Nations International Covenant of Civil and
- to provide practical
and flexible solutions; and
- to minimise the need
for detailed governmental and/or inter-governmental legislation or regulations.
Most self-regulatory advertising organisations pay special attention to
the suitability of advertising aimed at children. Furthermore, self-regulation
occurs within national legal regulatory frameworks, which are designed to
protect consumers and ensure fair trading practices.
The European Advertising Standards Alliance (EASA) is a global peak body
that represents advertising self-regulation systems in Europe and beyond. Australia
is a one of eight non‑European member countries.
The EASA aims to promote and strengthen advertising self-regulation
across the European Union, and provides a cross-border complaints system for
advertising broadcast from or encountered in another EASA member country.
Almost all European Union countries have advertising self-regulatory systems.
In the United Kingdom, broadcast advertising is co-regulated and
non-broadcast advertising is self-regulated. Outdoor advertising, which falls
under the non-broadcast advertising category, is self-regulated by the
industry, which writes the codes, and these codes are enforced by the
Advertising Standards Authority (ASA). The ASA does not need a complaint to be
lodged before it can take action to have an advertisement withdrawn or changed.
The ASA conducts spot checks on approximately 10 000 advertisements a week.
When considering whether an advertisement is in breach of the codes, the
ASA takes into account the context, the medium in which an advertisement
appears and the audience. The placement of an advertisement will have a direct
bearing on whether the ASA judges it to be acceptable. Thus an advertisement that
may be considered acceptable if placed in a magazine that was unlikely to be
read by children, could equally be considered unacceptable if placed on a
billboard that children could view.
Canada's independent advertising self-regulatory body is Advertising
Standards Canada (ASC), which administers the Canadian Code of Advertising
Standards, manages a consumer complaints process, and provides advertising
preclearance for five regulated categories, including alcohol, children’s
advertising, consumer drugs, cosmetics, and food and drink.
The ASC established Gender Portrayal Guidelines in 1981. These guidelines
address the portrayal of authority, decision-making, sexuality, violence,
diversity and offensive or exclusive language.
New Zealand’s Advertising Standards Authority self-regulates advertising
under codes of practice. Complaints are heard by an independent Advertising
Standards Complaints Board (ASCB) and there is a right of appeal to the
independent Advertising Standards Complaints Appeal Board. The ASCB comprises
five public representatives and four industry members.
The United States does not have a single national self-regulating body
and instead there are several bodies which represent or monitor advertising.
There are also several bodies which accept complaints about advertising from
members of the public.
The Outdoor Advertising Association of America is the lead trade
association representing the outdoor advertising industry. The American
Advertising Federation is the oldest national advertising trade association. The
National Advertising Review Council has developed a self-regulatory system that
supports advertiser compliance.
The states of Vermont, Hawaii, Maine, and Alaska have banned all
billboards, and approximately 1 500 American cities and towns prohibit the
construction of new billboards.
Advertising regulation in Australia
Advertising content, and therefore that of outdoor advertising, is
self-regulated in Australia by the industry. Australia has had two advertising
self-regulatory systems in its history. Originally, the Advertising Standards
Council functioned as the independent complaints body. It was established by
the national representative bodies of advertisers, advertising agencies, and
In 1996, the Australian Competition and Consumer Commission (ACCC)
deemed the media arm’s accreditation system for advertising agencies
uncompetitive and decided to conduct a review of advertising standards. The
ACCC found that the self-regulatory system relied on outdated codes and lacked
compliance, administrative control, confidence and commitment.
The national advertisers’ body, the AANA, created a new self-regulatory
system in 1998. This new system established a Code of Ethics and the
Advertising Standards Bureau (ASB), which incorporates an independent Advertising
Standards Board to hear complaints regarding standards of taste and decency,
and an Advertising Complaints Board for rival advertiser complaints.
The self-regulatory system exists within the framework of relevant
Commonwealth and State or Territory legislation. Advertising that breaches legislation
is not considered by the self-regulatory system.
Government and commercial contracts may also impose self-determined
restrictions on advertising content and placement.
There are a number of voluntary codes, in addition to the AANA Code of
Ethics, that apply to advertising as a whole or specific to an industry or
product. The Advertising Standards Bureau administers the majority of these
Advertising content must comply with the Competition and Consumer Act
2010 (Cth) (the CCA). The Competition and Consumer Act contains the
Australian Consumer Law, which is a national law that protects consumers from
false and misleading representations and misleading and deceptive conduct.
The Advertising Complaints Board acts as an internal dispute resolution
system for advertisers who object to allegedly false or misleading claims made
by competitors. The remit of the Advertising Standards Board does not cover
consumer complaints under the CCA, which are referred instead to the ACCC or
relevant State/Territory departments.
The ACCC is an independent statutory authority set up by the Australian
Government to administer the CCA. It is responsible for regulating the
truth and accuracy of claims made in advertising, but not the standard of the
The ACCC gave the Committee some examples where outdoor advertising had
been found by the ACCC to be in breach of the Australian Consumer Law in making
misleading or deceptive claims. As the Australian
Consumer Law has been adopted by all states and territories, the standards of
fair trading practices are uniform across Australia.
The ACCC has a number of enforcement measures, including infringement
notices and court action. In addition to accepting
up to 100 000 complaints each year, including anonymous and oral
complaints, the ACCC initiates investigations where breaches are seen to have
Advertising of tobacco products is prohibited under the Tobacco
Advertising Prohibition Act 1992 (Cth), and the advertising of therapeutic
goods is regulated under the Therapeutic Goods Act 1989 (Cth) and Therapeutic
Goods Regulations 1990 (Cth).
Advertising content on television is co-regulated under the Broadcasting
Services Act 1992 (Cth). Television, and other such media, is outside the
scope of this inquiry.
All states and territories have enacted application legislation to adopt
the Australian Consumer Law, so this law applies equally in all states and
territories. State and territory governments regulate the advertising of
Governments at the state, territory and local level regulate advertising
signage and position in terms of public safety (including road safety),
planning laws, and the visual impact. Private and third-party
outdoor advertising must comply with council regulations regarding placement.
Government and commercial contracts
Advertisers and media display companies may enter into contracts or
licence agreements with government, council or corporate bodies. These
contracts will often include internal policies regarding the placement or
content of advertising.
For example, the Roads and Traffic Authority of New South Wales (RTA)
stipulates that advertising under its licence must not contain reference to
alcohol, tobacco, politics, pornography, religion, or ‘any other products which
are unsuitable in the [RTA’s] opinion’.
Westfield Brandspace, which partners with an outdoor advertising
company, has its own advertising content policies that advertisers must adhere
Voluntary advertising codes
Advertising content is also subject to a number of voluntary industry
codes. This inquiry will address only those codes that apply to outdoor
Fundamental to the self-regulatory advertising system is the Code of
Ethics, which the AANA describes as ‘the cornerstone of the advertising self
regulatory system in Australia’ and claims that it ‘provides the overarching
set of principles with which all advertising and marketing communications,
across all media, should apply’.
The Code of Ethics contains two sections. The first section addresses
the basic principles of legal, honest and truthful marketing communication and
is administered by the Advertising Complaints Board, which acts as a dispute
resolution system for advertisers. The second section deals with decency and
community standards, and is administered by the Advertising Standards Board.
In addition to the Code of Ethics, the AANA has created the following
- Food and Beverages
Advertising and Marketing Communications Code
- Code for Advertising and
Marketing Communications to Children, and
- Environmental Claims
in Advertising and Marketing Code.
Specific industries have advertising codes of practice, such as the Alcohol
Beverages Advertising Code (ABAC). The ABAC Scheme is unique in that it is a
quasi-regulatory scheme rather than self-regulatory. The Federal Chamber of
Automobile Industries has a Voluntary Code of Practice for Motor Vehicle
Some members of the fast-food industry have established the Quick
Service Restaurant Initiative (QSRI), managed by the Australian Food and
Grocery Council (AFGC) to complement the AANA Food and Beverages Advertising and
Marketing Communications Code.
The Therapeutic Goods Advertising Code and the Weight Management
Industry Code also apply to outdoor advertising, but are not administered by
the Advertising Standards Bureau.
The Outdoor Media Association has its own Code of Ethics for third-party
outdoor advertisers, but this is not assessed by the Advertising Standards
The various codes and their administration will be discussed more fully
in Chapter Four.
Advertising Standards Bureau
As indicated, the AANA established the Advertising Standards Bureau
(ASB), which includes an Advertising Standards Board (the Board) that manages
complaints about advertising standards. The ASB is funded by the advertising
industry through a levy of 0.035 per cent of gross media expenditure, which is maintained
separate to AANA funds and confidential from the ASB.
The ASB provides a free public service of complaint resolution for:
- Section 2 of the AANA
Code of Ethics, which deals with matters of taste and decency;
- AANA Food and
Beverages Advertising and Marketing Communications Code;
- AANA Code for
Marketing and Advertising Communications to Children;
- AANA Environmental
Claims in Advertising and Marketing Code;
- Federal Chamber of
Automobile Industries Voluntary Code of Practice for Motor Vehicle Advertising
- AFGC Australian Quick
Service Restaurant Industry Initiative for Responsible Advertising and
Marketing to Children; and
- Alcohol Beverages
Advertising (and Packaging) Code.
The Board makes determinations on complaints in relation to issues
including the use of language, the discriminatory portrayal of people, concern
for children, portrayals of violence, sex, sexuality and nudity, health and
safety, and marketing of food and beverages to children.
Advertisements are not pre-vetted by the Board, and the Board only makes
determinations after a complaint has been received.
The Board comprises 20 members who are independent of the industry, ‘from
a broad range of age groups and backgrounds [that] is gender balanced and as
representative of the diversity of Australian society as any such group can be.’
Board members are appointed on a fixed-term basis by the Directors of the Board
following publicly advertised application and interview processes.
Complainants and advertisers can appeal decisions made by the Board through
an independent review process, which was established in 2008.
The ASB recently conducted and published a review of the independent review
system that sought input from industry and the community through
questionnaires. Further discussion on
the independent review process is provided in Chapter Five.
As a self-regulatory system, the ASB cannot enforce its decisions. However,
the ASB claims that nearly 100 per cent of advertisers comply with its
decisions. In cases where
compliance is not achieved, the ASB can:
- refer the case, where
the advertisement breaches legislation or regulations, to the appropriate
government agency or industry body;
- make the
non-compliance publicly available on its website or through a media release;
- ask industry bodies,
such as the Outdoor Media Association, to negotiate directly with the
- refer the case to the
Australian Communications and Media Authority or to state police departments.
Outdoor advertising: a special category?
Currently Board determinations may take into consideration the medium of
an advertisement, such as use of a billboard, in addition to its placement.
Certain codes place restrictions on the placement of outdoor advertisements for
some products. However, there is no separate regulatory code or process for
Despite their public and unavoidable nature, outdoor advertising is
regulated by the ASB in the same manner as other forms of advertising. Central
to this inquiry is the issue of whether outdoor advertising warrants
consideration as a special category.
Dr Kurt Iveson, in his submission to the inquiry, observes that ‘debates
about outdoor advertising have a very specific inflection because by their
nature, they are also debates about the nature of urban public spaces’.
The Castan Centre for Human Rights Law adds that ‘outdoor advertising
occupies a privileged place in the public space’.
It is similar to a form of public speech or expression, which needs to be mindful
of appropriateness to culture and place.
In addition to being unavoidable, there is no control over the prevalence
of outdoor advertising. Submissions to the inquiry have raised the issue of not
just inappropriate but also cumulative exposure to advertising of people
outside the target audience, particularly children.
Moreover, outdoor is a rapidly growing medium for advertisers. The Media
Federation of Australia advises that ‘outdoor advertising offers a unique and
compelling environment as a powerful communication tool and has the significant
advantage of appealing to a captive and mobile audience’.
Consumers cannot exercise their choice to view or ignore advertisements
displayed in the public space, as may be possible with other mediums. Ms Karyn Hodgkinson
asserts in her submission that ‘such public advertising is undemocratic—there
is no choice involved when a huge billboard is in the public arena where all
are forced to see’.
The Salvation Army Australia Southern Territory describes outdoor
advertising as ‘a particular form of ubiquitous advertising that by their very
nature invade public visual space without discrimination or individual
The Australian Christian Lobby agrees:
By its very nature outdoor advertising is a public broadcast
medium, and because it is static, can be examined more closely by members of
the public. It is not possible to filter those who see the advertising and
there is no opportunity for members of the community to exercise choice to not
These are the very features that make outdoor advertising appealing to
advertisers. APN Outdoor boasts on its website that ‘outdoor is the only
advertising medium that is virtually immune to consumer avoidance. It can’t be
turned off, flipped to the next page or thrown away. And it is free to view.’
The very nature of outdoor advertising, with its unrestricted audience,
means that adults and especially children can be exposed to material that is
not necessarily directed at them, and may not be considered appropriate viewing
for all community members.
For example, advertising directed at children and the portrayal (including
sexualisation) of children in advertising are subject to specific stricter
codes. However, children can be exposed to inappropriate material through outdoor
advertising that targets an adult audience but is displayed in a public
thoroughfare used by children in the course of their daily lives. The
advertisement may be acceptable according to prevailing community standards for
adults, but regarded as inappropriate for children. This then raises the issue
of the appropriateness of the advertisement in an out-of-home setting with
Equally, a number of submissions objected to sexual and degrading images
of women which accost them in out-of-home advertisements during their daily
lives. These same or similar images may appear in other media, but many
considered that the large scale nature of these outdoor advertisements and
their placement in public spaces robbed them of their freedom of choice.
The UK and New Zealand advertising self-regulatory systems recognise the
special nature of outdoor advertising. The UK Advertising Standards Authority
explains that ‘a risqué advertisement in an untargeted medium, such as a
billboard, is likely to raise more concerns than if it appeared in a targeted
medium, such as a women’s magazine, where children are less likely to see it’.
According to the NZ Advertising Standards Authority:
Billboards seen by all including schoolchildren differ from
magazines or targeted radio or television programmes for specialised audiences,
for example. A beer advertisement using graffiti failed the high social
responsibility test when it appeared on a billboard. While the product had a
target audience of 25-34 year-olds, the Board observed, quoting an earlier
decision, ‘once a billboard goes up, the advertisement is no longer confined to
that audience and any communication or message extends to people of all ages
and in fact the public at large’.
The Australian Council on Children and the Media notes that ‘it is
ironic that billboards and outdoor advertising are one of the least regulated
forms of advertising under our legal system, considering that they are the
hardest form for consumers to avoid if they object’.
The feminist organisation, 2020women Inc, recommends that outdoor
advertising be subject to ‘stronger controls than prime time television because
it is unavoidable to the public and the physical size of the advertisement
increases its impact’.
Although specific mention of outdoor advertising is not made in the AANA
Code of Ethics, the Board has indicated in its determination summaries that it
does take the public nature of outdoor advertising and its placement into
consideration when determining the acceptability of its content:
Outdoor advertising is in the public domain and has a broad
audience. The Board believes that messages and images presented in this medium
need to be developed with a general audience in mind and has given particular
attention to the placement of such advertising e.g. outdoor advertising
depicting violence or sexual content that is placed close to schools and
churches is of particular concern.
Certainly the proportion of all complaints related to outdoor
advertising received by the ASB indicates a particular community concern with
the current content and placement of outdoor advertising. In 2010, 20 per cent
of all advertising complaints were regarding outdoor advertisements,
despite the fact that outdoor advertising represents a smaller share of all
advertising media. In addition, 16.7 per cent of those complaints were upheld
compared to an overall rate of 9.4 per cent for complaints about all media.
These figures suggest that outdoor advertising attracts proportionately
more dissatisfaction from the community. The higher rate of upheld complaints
for outdoor advertising suggest that the industry may be using content in
outdoor advertising that community members consider inappropriate for a wider
Two issues are raised from this evidence. Firstly, should outdoor
advertising constitute a special category of advertising which is subject to a
different code regarding content and placement? The second issue is whether the
current self-regulatory system has the capacity to adequately regulate outdoor
advertising. This is considered in the following chapter.
The Committee understands that advertising self-regulation, within
existing legislative frameworks, is the standard system in many developed
countries. The self-regulatory system in Australia has undergone a number of
changes to improve its operation in relation to the development of codes
addressing specific products and certain types of advertising. However little
consideration has been given to outdoor advertising despite the expansion of
this form of advertising and an increased number of complaints related to this
form of advertising.
Outdoor advertising occupies public space and demands attention from a
captive audience. As such, the content of outdoor advertising is a public
policy issue as it affects the comfort and amenity of the public.
The Committee is of the view that outdoor advertising constitutes a
special category of advertising. It should be addressed in different ways to
that of other types of advertising, such as print and television, wherein
consumers have more choice about engaging with the advertising. In much the
same way as advertising to children and alcohol advertising are regulated by
codes that ensure a social responsibility in line with community expectations
is met, outdoor advertising requires a more socially responsible approach.
The Committee is not seeking to define what may or may not be acceptable
to the Australian community. The Committee recognises that a breadth of views
exist and that, due to that diversity, when an advertisement appears in a
public space then its appropriateness should be considered with regard to an
This is not to suggest that ‘conservative views’ or what some might term
‘prudishness’ should prevail. Rather, the Committee considers that the
appropriateness of content should be considered in line with the mainstream Australian
community views of tolerance and acceptability. The target audience may be a
minority group, however the presentation, placement and images of the
advertisement should be in line with what a community would deem acceptable in
an unrestricted public place. Such an approach should not curtail the
effectiveness of targeted public interest campaigns, but should inform them in
making a responsible choice.
To achieve this, the Committee concludes that outdoor advertising requires
specific regulatory attention in order to address the unique nature of these
advertisements that populate public spaces.
Defining the most appropriate regulatory approach to outdoor advertising
requires an assessment of alternative regulatory models and the effectiveness
of the current self-regulatory system for advertising. This is considered in
the following chapter.