The ASB sometimes receives complaints about advertising that may be regarded as “political”.
What is political advertising?
Political advertising is advertising that attempts to influence or comment upon a matter which is currently the subject of extensive political debate.
Political advertising includes advertising or marketing communications about a political party, representative or candidate, advertising about political issues or issues of public interest, and advertising in relation to government policies (whether published/broadcast by the government or someone else). Advertising by Government, political parties, lobby groups and other interest groups may fall into this category.
Political advertising does not necessarily include all advertising by governments or organisations that are at times involved in the political process, such as lobby groups or interest groups. Such advertising may be regarded as informational or educational rather than political, as determined on a case-by-case basis and complaints about these advertisements which raise issues under section 2 of the AANA Code of Ethics may be considered by the Board.
Political advertising includes but is not limited to election advertising. The number of complaints received about political advertising often increases during election periods.
What is election advertising?
Advertising or marketing communications are generally regarded as “election advertising” where they contain material intended or likely to affect voting in an upcoming election. Election advertising is not necessarily limited to advertising by parties or candidates contesting an election and may include advertising outside of an election period where there is a relevant connection to an election. Generally, it will not include government information or education campaigns outside of an election period.
In determining whether an advertising or marketing communication is “election advertising”, regard may be had to the provisions of the Broadcasting Services Act 1992, Commonwealth Electoral Act 1918 and State/Territory electoral legislation relating to election matter and electoral advertising. For advertising in the non-broadcast media, the presence of an authorisation required under the Commonwealth Electoral Act (or State/Territory electoral legislation) will be a relevant consideration. For broadcast advertising, the Broadcasting Services Act requires an authorisation for all political matter, not just election advertising, and as a result will not be a determinative factor.
Truth in political advertising
Many public complaints regarding political advertising raise issues about the truth and accuracy of the advertisement, in particular concerns that the advertising is misleading. The Advertising Standards Board considers complaints under Section 2 of the Code of Ethics, which does not cover matters of truth and accuracy.
The ASB ordinarily refers public complainants with concerns about the truth or accuracy of advertisements to the Australian Competition and Consumer Commission (ACCC) or the State/Territory consumer affairs/fair trading body. However, although these organisations deal with claims of false and misleading advertising, their jurisdictions are limited to matters involving trade and commerce and do not extend to political advertising.
Currently, there is no legal requirement for the content of political advertising to be factually correct. Complainants are advised to raise their concerns with the advertiser directly and/or with their local Member of Parliament.
Offensiveness in political or election advertising
Complainants may also raise issues about the offensiveness of political advertising, pertinent to Section 2 of the Code.
Where the complaint relates to an advertising or marketing communication that may be regarded as political or election advertising, the complaint will usually not be forwarded to the Board for its consideration. The adjudication of complaints about political and election material is outside the charter of the Board.
Political and election advertising is not considered by the Board under Section 2 for several reasons:
- The advertising self-regulation system was established as an industry initiative with the objective of regulating commercial communications, not advertisements containing political claims aimed at influencing the political process.
- It is important to the Board’s integrity that it is seen as an impartial adjudicator free from perceptions of political bias.
- Adjudicating on complaints about election advertising could be regarded as unduly restricting the implied constitutional freedom of political communication or interfering with the political process.
- Opening up the system to political advertising could invite spurious claims and nuisance complaints that may cause disruption to the normal political process and an inappropriate drain on limited industry resources.
In our view, it is not possible to make decisions about whether a political or election advertisement breaches the Code without the potential for being seen to be taking a political viewpoint.
Other forms of advertising by governments and organisations that are at times involved in the political process may be regarded as informational or educational rather than political. Complaints about such advertising may be referred to the Board for consideration provided they are not regarded as political advertising and they raise issues under section 2 of the Code.
Other organisations that regulate political or election advertising
Other organisations that may be of assistance in regard to political or election advertising include:
- The Australian Communications and Media Authority (ACMA) – The ACMA has responsibility for the regulation of political and election matter in the broadcast media under the Broadcasting Services Act, although this does not extend to matters of truth and accuracy or defamatory statements. ACMA has published further information on broadcasting and communication of political and election matter which provides further guidance and is available on its website.
- The Australian Electoral Commission (AEC) – the AEC has responsibility for the regulation of election advertising under the Commonwealth Electoral Act. The AEC’s role includes ensuring that electoral advertisements are properly authorised so that electors can know who is responsible for the statements contained in them. The AEC has no role or responsibility in deciding whether political messages published or broadcast in relation to a federal election are true or untrue. The AEC has published an Electoral Backgrounder on Electoral Advertising, available on its website.
- The relevant State/Territory Electoral Commission – the State/Territory Electoral Commissions are responsible for matters including authorisation of election advertising.
Complainants should be aware that the ASB is an industry funded body. It is inappropriate for the ASB to assume jurisdiction over the content of political advertising in the absence of Government support for such advertising to be regulated.
Complainants may wish to raise concerns with their local Member of Parliament.