How do we define ‘political‘ TV advertising?

As the furore surrounding the same sex marriage debate reaches fever pitch, Pamela Longstaff, acting CEO of Free TV, discusses how we can define when a TV ad becomes political.

The increasingly charged public and political environment surrounding the same sex marriage postal vote has raised some complexities for advertisers when it comes to what is defined as political matter in television commercials. Those complexities also apply to Free TV when reviewing TV commercials to ensure they comply with the law.

It is important for advertisers to understand that not only do TV commercials need to be checked for content including symbols, icons, hashtags, but the content of any website referred to in the commercial also needs to be checked.

These complexities came into stark relief when Dad4Kids was requested, but declined, to add the required authorisation tag to its recent Father’s Day commercial. A heated public debate ensued. Free TV did not ban or censor the commercial, but requested that the reference to the website be removed or the commercial include an authorisation tag.

Australia’s TV broadcasters are required by the Broadcasting Services Act to ensure that commercials that contain political matter identify the organisation or person responsible for the commercial and the speakers in it.

The test of what is ‘political matter’, however, is subjective. The Act defines ‘political matter’ as ‘any political matter, including the policy launch of a political party’. The Australian Communications and Media Authority (ACMA) is responsible for interpreting the act.

It has provided guidance that political matter is any content that ‘appears to comment on, encourage participation in or attempt to influence a certain outcome within a political process’.

Far from any covert effort to stifle free speech or censor advertisements, this is a practical consideration for broadcasters and was designed by the parliament to clearly identify the source of any political messages to the viewing public.

Any broadcast of a commercial without the correct authorisation tag is a breach of the TV networks’ licence conditions and in the current sensitive environment, Free TV needs to take an unapologetically cautious approach.

Recent guidance provided by ACMA in relation to the Australian Marriage Postal Law Survey is that any matter “that would be understood by a reasonable audience member as seeking directly or indirectly to influence their views about same sex marriage or the Australian Marriage Law Postal Survey will be political matter that needs to be ‘tagged’.”

It’s important to note that the recently passed Marriage Law Survey Act also now places the obligation on advertisers to tag their commercials with the same authorisation as the Act and there are penalties for those that don’t comply.

Broadcasters must rely on previous ACMA investigation decisions to determine whether a commercial contains political matter. Recent ACMA decisions suggest that broadcasters need to take into account not just the TV commercial itself but also any symbols, icons, hashtags and contents of the advertisers’ websites.

For example, an ACMA decision concerning a commercial for anti-abortion organisation Emily’s Voice, which directed viewers to its ‘notbornyet’ website, requires broadcasters to consider the content of any website referred to in a commercial.

Applying these rules is as subjective as it is complex. It is important to emphasise that Free TV is not seeking to censor ads, nor is it our role to do so. As the body representing Australia’s free-to-air broadcasters, we assist broadcasters to meet their licence conditions and legal responsibility to ensure that the organisation behind the commercial containing political matter is clearly disclosed.

To further assist advertisers navigate this complex area of regulation, we encourage them to contact Commercials Advice at Free TV at any stage of the creative process. In addition, ACMA has also provided guidance on its website under which it evaluates complaints.

We appreciate that there may be creative concepts and applications that are not covered in the guidance provided. Therefore, apply this rule of thumb: if you are planning to use the marriage equality survey to leverage your advertising message, as subtle as it may be, it will and is, required to be tagged.

Pamela Longstaff is acting CEO of Free TV, an industry body which represents all of Australia’s commercial free-to-air television licensees.


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