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Right Charlies?

By Steven | February 4, 2008

Was the Advertising Standards Complaints Board right to uphold a complaint about the Charlies “sunbathing” fruit-juice ad? Even after Charlies agreed to screen it only in adult-viewing timeslots?

It’s a typical piece of Marc Ellis larrikinism. He’s shown as a cartoon child spying on a buxom neighbour sunbathing nude (her cartoony breasts are strategically covered, first by a book and then, as the camera zooms in on them like, I guess, a kid’s attention zone, by the top of a fence). The image then dissolves into two hands lovingly rotating fruit over juicers. It doesn’t take a great stretch of the imagination to see a connection.

The advertising standards complaints board was plainly divided over this one. They considered complaints under five different heads, and were split on all of them. They concluded (by majority) that the ad, in that timeslot, wouldn’t cause widespread offence, or violate norms of taste and decency. But they found (by majority) that it breached the rule requiring social responsibility because of the child characters and the sexual overtones. They also upheld the complaint (again by majority) against using sex to sell unrelated products.

Note to those tempted to see this as an example of the excesses of the Nanny State: WRONG. The Advertising Standards Authority is not part of the government, but was set up by industry self-regulation.

Still, it is still conducting a public function and is therefore subject to judicial review, and to the Bill of Rights Act. Is there a possible case? I think there is. Although I’m told that the ASCB considers the Bill of Rights in every case, the decisions don’t mention it. (To be fair, neither do the lawyers’ submissions). It’s very difficult to tell how they use it. It’s not even clear that a rule as broad and vague as a requirement of “social responsibity” is sufficiently precise to count as “prescribed by law”. In any event, that very nebulousness ought to make the ASCB very cautious about the application of that rule. Here, the ASCB was divided, there was an element of humour, and I would have thought the case was generally fairly close to the line: all three tell against upholding the complaint. On the other hand, it’s hard to get past the finding that the ad was using sex to sell an unrelated product. (I’m not inclined to see the emphasis on “nothing artificial” during another cleavage close-up provided sufficient connection).

Overall, this strikes me as something that will quickly be filed under “quaint speech suppression”, like the BSA’s rulings in the 1990s that the taste and decency standard was breached by Lindsay Perigo calling Ministry of Education staffers “child molesters of the mind” and Deborah Coddington calling NZ on Air “Nazis on Air”. Personally I find the ad a bit sleazy, and it would tend to make me want to avoid the product rather than buy it, but I’m not sure the ad ban is really demonstrably justified.

Topics: Advertising Standards, NZ Bill of Rights Act | 2 Comments »

2 Responses to “Right Charlies?”

  1. Graeme Edgeler Says:
    February 4th, 2008 at 2:41 pm

    Still, it is still conducting a public function and is therefore subject to judicial review, and to the Bill of Rights Act.

    I’m not sure that the conflation of public function under judicial review and under the Bill of Rights Act is helpful.

    The tests are distinct – and while the ASCB is clearly judicially reviewable (not least because they have been in the past), I think it less clear that they are necessarily bound to apply the Bill of Rights (it’s possible that’s come up in the past too and I missed it).

    A basically voluntary body, with no coercive powers – I’m not sure a court would/should consider they were exercising a sufficiently public function (i.e. one conferred or imposed by or pursuant to law, as section 3 requires).

  2. Steven Says:
    February 5th, 2008 at 7:31 pm

    I think if you look at Electoral Commission v Cameron (which is the case you refer to), you’ll see there’s very little room for doubt. The Court of Appeal said:

    “By s8(2) the Broadcasting Standards Authority has jurisdiction only where neither the broadcaster nor the advertiser recognises the jurisdiction of the [Advertising Standards Complaints] Board in relation to the particular complaint. The significance of this statutory recognition of the Board is to confirm, if that is necessary, that the Board has a role of a public nature in regulating advertising equivalent in part to that of the statutory Broadcasting Standards Authority.”

    And later:

    “The Board in carrying out its public regulatory role, though in accordance with powers conferred (as is assumed in these present remarks) by a private organisation, must be regarded as exercising public power.”

    This was despite the fact that it was pressed upon the court that the system was voluntary and non-coercive. Yes, this was in the context of judicial review, not the Bill of Rights. But the Court of Appeal would have to do some extraordinarily fancy footwork to reach the conclusion that the ASA is not performing a public function under the Bill of Rights.


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