Complaint: 17/396

New Zealand Aids Foundation, Out of Home - Poster

Details

Complainants
advertisers
New Zealand AIDS Foundation
Year
2017
Media
Out of Home
Product
Advocacy
Clauses
Decision
Not Upheld
ASA Links
Website Listing
Decision Document

Document





COMPLAINT NUMBER
17/396
COMPLAINANT
E O'Donoghue
ADVERTISER
New Zealand Aids Foundation
ADVERTISEMENT
New Zealand Aids Foundation,
Out of Home - Poster
DATE OF MEETING
14 November 2017
OUTCOME
Not Upheld


SUMMARY

The poster advertisement for 'Ending HIV' by the NZ AIDS Foundation showed two men
kissing passionately and said: "We test because we care. Test for HIV. Search Ending HIV.
Stay safe + test often + treat early = Ending HIV".

The Complainant said they were offended by the advertisement as it was highly sexualised
was able to be seen by the general public and children particularly.

The Advertiser said the imagery of two men kissing in the context of an advocacy
advertisement was entirely relevant to the message to test for HIV and the placement was
appropriate for the target audience.

A minority of the Complaints Board said the identity of the Advertiser should have been
clearer and the advertisement did not meet the identification requirement of Rule 11 of the
Code of Ethics.

The majority of the Complaints Board said the identity of the Advertiser was clear because of
the clear positioning statement, the Ending HIV logo and cal to action to "search Ending
HIV."
The Complaints Board said while the advertisement was provocative and sexual y
suggestive, taking into account it was an advocacy advertisement promoting a public safety
message to test for HIV, it did not reach the threshold to offend against general y prevailing
community standards or cause serious or widespread offence. The Complaints Board ruled
the advertisement was not in breach of Rules 4 or 5 of the Code of Ethics and had been
prepared with a due sense of social responsibility required by Basic Principle 4 of the Code
of Ethics.

In accordance with the majority, the Complaints Board ruled the complaint was Not Upheld.

[No further action required]

Please note this headnote does not form part of the Decision.







17/396
COMPLAINTS BOARD DECISION

The Chair directed the Complaints Board to consider whether the advertisement was in
breach of Basic Principle 4 or Rules 4, 5 and 11 of the Code of Ethics. This required the
Complaints Board to consider whether the advertisement contained anything which clearly
offended against general y prevailing community standards, or was likely to cause serious or
widespread offence, taking into account the context, medium, audience and product
(including services) and whether the advertisement had been prepared with a due sense of
social responsibility to consumers and society.

The Complaints Board said the advertisements before it fel into the category of advocacy
advertising and noted the requirements of Rule 11 of the Code of Ethics. The Complaints
Board noted Rule 11 al owed for expression of opinion in advocacy advertising, provided that
the expression of opinion is robust and clearly distinguishable from fact. 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 Bil of Rights Act 1990, in granting the right of freedom
of expression, al ows 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 al 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.

4.
That robust debate in a democratic society is to be encouraged by the media
and advertisers and that the Codes should be interpreted liberal y to ensure
fair play by the contestants.

5.
That it is essential in al advocacy advertisements that the identity of the
advertiser is clear.

The Complaints Board ruled the complaint was Not Upheld.

The Complaint
The Complainant said they were offended by the advertisement as it was highly sexualised
was able to be seen by the general public and children specifical y.

The Complaints Board noted the Complainant was concerned about the placement of the
advertisement in close proximity to another advertisement with similar imagery from the
Court Theatre for a play.

The response from Advertiser, the New Zealand AIDS Foundation
The New Zealand AIDS Foundation responded to the complaint stating that "Ending HIV
believes that it is general y social y acceptable to talk about sex and sexual health in the
context of HIV and that this should not cause widespread offence... Ending HIV is a social
marketing programme which has been developed to encourage prevention, testing and early
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17/396
treatment amongst those New Zealanders most at risk of HIV, namely, gay and bisexual
men. The message to "test for HIV" is a central component of the programme which aims to
increase HIV testing among this group and is well known and familiar to the target audience.
Al Ending HIV promotional material, including the posters in question, are developed with
this clear social marketing objective in mind."

Regarding the placement of the advertisement, the Advertiser said "the decision to place
these advertisements in 'mainstream' mediums such as street posters was based on two key
considerations, the first being that gay and bisexual men live, work and socialise within the
wider mainstream community; secondly, we know that most gay and bisexual men cannot be
reached through gay media alone. In 2016 the NZAF commissioned research into the media
consumption habits of our audience. Results show that only 14% of gay and bisexual men
read magazines or websites aimed at gay and bisexual men."

Turning to the image used in the advertisement, the Advertiser said it "acknowledges that
the imagery used is flirtatious, however in the context of the message and product, we
believe it is appropriate. Importantly, it is not gratuitous and has not been used simply to
draw attention to an unrelated product. The imagery is entirely relevant to the message and
the target audience.

In relation to whether the identity of the Advertiser and their position was, the Advertiser
said, in part: "We believe it is clear the message is intended for gay and bisexual men. We
believe that we have made it clear that the advertiser is Ending HIV by providing the 'Search
Ending HIV' tag line."

Response from the Media, Phantom Billboards
Phantom Bil boards responded to the concerns of the Complainant about the image on the
poster and their concerns about its placement stating, in part: "the men in the poster are both
wearing trousers and they're not behaving indecently; kissing is general y deemed
acceptable public conduct, as is going without a shirt for men. The public good promoted by
this poster (testing enabling safer behaviour and proactive treatment preventing the spread
and harm caused by HIV) is in my view considerable we therefore considered it wel worth
giving people pause to stop and consider."

In terms of the placement of the two similar images on the same poster bol ard, Phantom
said this "was unintentional, unfortunate and unhelpful to either campaign. We run hundreds
of different poster designs at any one time so it's a little unlucky and perhaps something I
should have anticipated. I can appreciate the complainant's point of view and why they'd be
feeling that it's a bit too much."

Complaints Board Discussion
The Complaints Board noted the Complainant's concern the image of the men kissing was
highly sexualised and could be seen by children.

The Complaints Board noted the advertisement was promoting testing for HIV from the New
Zealand AIDS Foundation and considered whether the identification of the Advertiser in
matters of public interest was clear as part of the requirements under Rule of 11 of the
Code of Ethics.

The majority said the identity of the Advertiser was clear. Taking into account the clear
positioning message in the advertisement "We test because we care. Test for HIV... stay
safe + test often + treat early = Ending HIV" and the Ending HIV logo and cal to action to
"search Ending HIV" the majority said the Advertiser had met the identification requirements
of Rule 11 of the Code of Ethics.

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17/396
A minority disagreed. It said the identity of the Advertiser should have been clearer as the
NZ AIDS Foundation and at a minimum, the website address should have been included,
rather than just the statement "search Ending HIV". The minority said the advertisement
was in breach of the identification requirement of Rule 11 of the Code of Ethics and had not
been prepared with a due sense of social responsibility required by Basic Principle 4 of the
Code of Ethics.

Having established the identity of the Advertiser was clear, the Complaints Board said the
image, while sexual y suggestive and provocative, included an important public health
message about testing for HIV. It noted the men were kissing in the advertisement but that
did not reach the threshold to offend against general y prevailing community standards or
cause serious or widespread offence.

The Complaints Board noted there was a level of risk in using an untargeted medium where
an advertisement can be seen by a general audience. In the instance before it, the
combination of two unrelated advertisements which contained similar images created an
overal impression for the Complainant. However, when the image and placement of the
advertisement before it was considered, the Complaints Board said it did not reach the
threshold to cause serious or widespread offence to most people taking into account the
context, medium, likely audience and public health message.

In accordance with the majority, the Complaints Board ruled the advertisement was not in
breach of Rules 4, 5 or 11 of the Code of Ethics and had been prepared with a due sense of
social responsibility to consumers and society required by Basic Principle 4 of the Code of
Ethics and ruled the complaint was Not Upheld.

Decision: Complaint Not Upheld



DESCRIPTION OF ADVERTISEMENT

The poster advertisement for 'Ending HIV' by the NZ AIDS Foundation showed to men
kissing passionately and said: "We test because we care. Test for HIV. Search Ending HIV.
Stay safe + test often + treat early = Ending HIV".

COMPLAINT FROM - E O'DONOGHUE

I find both adverts offensive because they are:

1. Highly sexualised, and
2. On ful public display.

It's evident when you look at each poster that sex is either taking place or about to. I'm
concerned young children are being exposed to highly sexualised content (would you like
your 4 year old to see this?). This should not be on ful public display.

CODE OF ETHICS

Basic Principle 4: Al advertisements should be prepared with a due sense of social
responsibility to consumers and to society.

Rule 11: Advocacy Advertising - Expression of opinion in advocacy advertising is
an essential and desirable part of the functioning of a democratic society. Therefore
such opinions may be robust. However, opinion should be clearly distinguishable
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17/396
from factual information. The identity of an advertiser in matters of public interest or
political issue should be clear.

Rule 4: Decency - Advertisements should not contain anything which clearly
offends against general y prevailing community standards taking into account the
context, medium, audience and product (including services).

Rule 5: Offensiveness - Advertisements should not contain anything which in the
light of general y prevailing community standards is likely to cause serious or
widespread offence taking into account the context, medium, audience and product
(including services).

RESPONSE FROM ADVERTISER - NEW ZEALAND AIDS FOUNDATION

I am writing in response to your letter dated 31 October 2017 regarding Complaint 17/396:
Ending HIV 'We Test Because We Care' Street Poster in Cuba Street Mal .
Our response is in relation to each of the relevant sections of the Advertising Codes of
Practice:

Basic Principles
4. All advertisements should be prepared with a due sense of social responsibility to
consumers and to society.

Ending HIV developed these advertisements as part of the New Zealand AIDS Foundation
(NZAF)'s HIV prevention programme. Gay and bisexual men are overwhelmingly the group
most at risk of HIV in New Zealand and continue to be over-represented in annual HIV
diagnoses. The message to "test for HIV" is a central component of the programme which
aims to increase rates of testing among this target group. This is in line with the NZAF's
Strategic Plan, and current government policy for HIV prevention.

Under Ministry of Health guidelines, New Zealand enjoys a responsible, proactive and widely
accessible approach to the sexual health of New Zealanders. Ending HIV believes that the
poster is a general y social y acceptable way to talk to any New Zealander about sexual
health, but especial y those who are most at risk of HIV.

The ads have been prepared with a due sense of social responsibility to consumers and to
society, with the objective being to increase rates of testing to identify new HIV infections
and prevent onward transmission to other New Zealanders.

Rules
4. Decency - Advertisements should not contain anything which clearly offends
against generally prevailing community standards taking into account the context,
medium, audience and product (including services).

5. Offensiveness - Advertisements should not contain anything which in the light of
generally prevailing community standards is likely to cause serious or widespread
offence taking into account the context, medium, audience and product (including
services).

Ending HIV believes that it is general y social y acceptable to talk about sex and sexual
health in the context of HIV and that this should not cause widespread offence.

The decision to place these advertisements in 'mainstream' mediums such as street posters
was based on two key considerations, the first being that gay and bisexual men live, work
and socialize within the wider mainstream community; secondly, we know that most gay and
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bisexual men cannot be reached through gay media alone. In 2016 the NZAF commissioned
research into the media consumption habits of our audience. Results show that only 14% of
gay and bisexual men read magazines or websites aimed at gay and bisexual men.

Ending HIV acknowledges that the imagery used is flirtatious, however in the context of the
message and product, we believe it is appropriate. Importantly, it is not gratuitous and has
not been used simply to draw attention to an unrelated product. The imagery is entirely
relevant to the message and the target audience.

11. Advocacy Advertising - Expression of opinion in advertising is an essential and
desirable part of the functioning of a democratic society. 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 issue
should be clear.

Ending HIV is a social marketing programme which has been developed to encourage
prevention, testing and early treatment amongst those New Zealanders most at risk of HIV,
namely, gay and bisexual men. The message to "test for HIV" is a central component of the
programme which aims to increase HIV testing among this group and is wel known and
familiar to the target audience. Al Ending HIV promotional material, including the posters in
question, are developed with this clear social marketing objective in mind.

We believe it is clear the message is intended for gay and bisexual men. We believe that we
have made it clear that the advertiser is Ending HIV by providing the 'Search Ending HIV' tag
line.
Please let me know if you or the Complaints Board require any additional information.

RESPONSE FROM MEDIA - PHANTOM BILLSTICKERS

I considered both of these images prior to the campaigns running.

I didn't feel that either was beyond the bounds of decency (and the test I run is exactly along
the lines of what the complainant states - "would I want my children to see this").
The Court Theatre campaign has run throughout Christchurch and the HIV Testing
campaign has run in several cities nationwide.

I didn't anticipate any issues arising with the Court Theatre poster.
The woman in the poster is clothed and they're not actual y kissing one another.
The relationship between the two characters is presumably a key part of the play being
promoted, so the use of this image to promote it doesn't strike me as gratuitous or designed
to provoke.

I am less surprised to get a complaint about the HIV Testing poster as some of the public
find same sex contact offensive.
However the men in the poster are both wearing trousers and they're not behaving
indecently; kissing is general y deemed acceptable public conduct, as is going without a shirt
for men.
The Public Good promoted by this poster (Testing enabling safer behaviour and proactive
treatment preventing the spread and harm caused by HIV) is in my view considerable we
therefore considered it wel worth giving people pause to stop and consider.

The placement of the two images on the same poster bol ard was unintentional, unfortunate
and unhelpful to either campaign.
We run hundreds of different poster designs at any one time so it's a little unlucky and
perhaps something I should have anticipated.
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I can appreciate the complainant's point of view and why they'd be feeling that it's a bit too
much.

I'd be happy to answer any other questions on this matter.

7