Complaint: 15/186

HIV Testing Poster


A. Findlay
New Zealand AIDS Foundation
Out of Home
No Grounds to Proceed
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A. Findlay
New Zealand AIDS Foundation
HIV Testing Poster
11 May 2015
No Grounds to Proceed

Complaint: The poster advertisement for the New Zealand AIDS Foundation promoted HIV testing month. The advertisement featured two men kissing accompanied by text that stated: "Why are gay & bi guys more prone to getting HIV?"

Complainant, A. Findlay, said: "The advertisement includes sexual imagery and is in a public place where children are able to observe it. The Code for Advertising to Children states 'All advertisements in all forms of media that influence children whether contained in children's media or otherwise shall adhere to the principles and guidelines set out in this Code.' The advertisement is required to be held to the Code for Advertising to Children, Clause 1(h), which states that advertisements should not include sexual imagery."

The relevant provisions were Basic Principle 4 and Rule 11 of the Code of Ethics.

Preliminary matter. The Chairman noted the Complainant referred to The Code for Advertising to Children. The Chairman said this code only applied to advertisements that were targeted at children. While the Complainant's concern was children's exposure to the advertisement, the Chairman said the target audience was gay and bisexual men. Consequently, the Chairman said the Code for Advertising to Children was not relevant to the complaint before her and considered the complaint under the Code of Ethics only.

The Chairman noted the Complainant's view the advertisement included imagery that was inappropriate for children to see and cited a potential breach of the Code for Advertising to Children.

She turned first to consider the advertisements under Rule 11 of the Code of Ethics and noted that Rule 11 of the Code of Ethics provided for robust expression of belief or opinion being as expressed by the Advertiser and, therefore, such opinions may be robust. However, opinion should be clearly distinguishable from factual information. The identity of an Advertiser in matters of public interest or political issues should also be clear.

Also applicable were the Advocacy Principles, developed by the Complaints Board in previous Decisions for the application of Rule 11. These said:

  1. That Section 14 of the Bill of Rights Act 1990, in granting the right of freedom of expression, allows advertisers to impart information and opinions but that in exercising that right what was factual information and what was opinion, should be clearly distinguishable.
  2. That the right of freedom of expression as stated in Section 14 is not absolute as there could be an infringement of other people's rights. Care should be taken to ensure that this does not occur.
  3. That the Codes fetter the right granted by Section 14 to ensure there is fair play between all parties on controversial issues. Therefore in advocacy advertising and particularly on political matters the spirit of the Code is more important than technical breaches. People have the right to express their views and this right should not be unduly or unreasonably restricted by Rules.

  1. That robust debate in a democratic society is to be encouraged by the media and advertisers and that the Codes should be interpreted liberally to ensure fair play by the contestants.
  2. That it is essential in all advocacy advertisements that the identity of the advertiser is clear.

The Chairman said the poster was in the category of advocacy advertising and was clearly identifiable as an advertisement for HIV testing by the New Zealand AIDS Foundation. She also noted that the Advertiser was clearly identified and noted the website address ( that directed consumers to the foundation.

Having made the above observations, the Chairman said the advertisement was not in breach of Rule 11 of the Code of Ethics.

When considering the Complainant's concern it was inappropriate to include sexual imagery in a medium and in a location where children are able to see it, the Chairman acknowledged the medium had an indiscriminate reach. However, she said she did not consider the image to be overly explicit or salacious. Rather, she noted it contained an important public health message targeting gay and bisexual men to remind them of the importance of HIV testing.

Therefore, taking into account content, audience, medium and product, the Chairman said the advertisement had been prepared with a due sense of social responsibility to consumers and society and, as such she ruled there was no apparent breach of the Code of Ethics.
Accordingly, the Chairman ruled that there were no grounds for the complaint to proceed.

Chairman's Ruling: Complaint No Grounds to Proceed