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Nipples of discontent

By Steven | October 1, 2013

It seems the whole of NZ’s media are carrying stories of the “nipple ban”. The stories say the Commercial Approvals Bureau has denied the NZ Breast Cancer Foundation permission to run an ad about breast cancer because it features nudity.

Reading through the storms of readers’ comments, I’m encouraged to find that most people think this is daffy. (Take a look at the Scottish ad that the NZ Breast Cancer Foundation was planning to copy and decide for yourself. They key point is that the pictures of breasts are largely used to illustrate symptoms of breast cancer – and the ad reportedly has triggered a huge increase in breast cancer awareness in Scotland).

Some are decrying New Zealand’s “nanny state” for this piece of censorship. But that’s not really true, on either count. The Commercial Approvals Bureau (CAB) is not a government agency. And this wasn’t a ban.

The CAB is an industry organisation that acts as a filter for broadcast ads. It’s a collaborative effort by broadcasters to protect the integrity of broadcast advertising by heading off potential breaches of advertising codes (and indeed the broadcasters’ own guidelines) before they are broadcast.

They told me that the Foundation emailed them a link to the Scottish ad, and asked whether it would be okay to screen something like that here. CAB replied that nudity was regarded as a breach of the advertising code, so they probably wouldn’t approve it. They say the Foundation never actually submitted an ad, or came back to argue the toss. The CAB was simply providing advice. It doesn’t have power to issue bans. They’ve only ever refused permission for one ad (though they have required changes to others, and they will only approve late-night scheduling for particularly edgy ads).

It’s true that the CAB doesn’t “ban” ads. But it does perform a gatekeeper function. The reality is that broadcasters are very unlikely to screen an ad that the CAB has not cleared, and will only screen it at times approved by CAB. It’s good that advertisers can get some guidance on standards, and broadcasters display some consistency in their ad decisions, and that problems can be headed off before money is wasted on expensive ads. But. It can mean that – as here – a piece of hasty and boilerplate guidance might rule out the production and screening of what would otherwise be an acceptable ad.

CAB tries to ensure that ads that would breach Advertising Codes aren’t made, but it doesn’t always get it right. The Advertising Standards Complaints Board sometimes upholds complaints about ads that have been cleared by CAB. And we could expect that it might sometimes not have upheld complaints about ads that CAB has nixed.

I expect that would be rare. CAB does not want to hold back ads unless it thinks they are pretty clear breaches. Here, it applied a rule of thumb that nudity wasn’t acceptable in ads. I’m not at all sure that the ASCB would have dinged a version of the Scottish ad, if it were broadcast here. But I’m not confident that they wouldn’t have. The code requires that ads are not indecent or offensive. I’d like to think that this one really isn’t, though I’m sure there are those who’d disagree. This is why I’m heartened by the almost universal feedback in the comments threads that restricting this ad is unjustified.

If anyone’s taking notice, the Bill of Rights would support this conclusion. The speech  is plainly very valuable, so compelling reasons are needed to restrict it. This is not gratuitous nudity. I suspect that both the ASCB and the CAB are performing public functions, and are therefore subject to the Bill of Rights.

Great publicity for the Foundation, anyway.

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