ABAC didn’t ignore your complaint, we were just being incompetent, says Advertising Standards Bureau

A few days ago, DrinkTank re-published  a post from Sydneyhealthlaw  about the failure of the ABAC Complaints Panel to respond to a complaint about Diageo streaming a liquor ad at a 3 year-old.

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DrinkTank ’s post was brought to the attention of the folks at ABAC and the Advertising Standards Bureau (ASB) .

If you want to complain about an alcohol advertisement, you need to submit it through the “front door” of the ASB.

The ASB determines whether or not the complaint raises issues relating to the Australian Association of National Advertisers (AANA) Code of Ethics.  My complaint did not: it only raised issues relating to applicable standards for advertising alcohol.

Accordingly, the ASB sent me this letter (Outside Charter-Not S2 – ABAC_01102015_11 34 34 566) advising that the ASB had forwarded the complaint to the ABAC Complaints Panel.

Except that it hadn’t.

ASB’s Operations Manager has now written to advise that due to an administrative error within the Bureau, my complaint went nowhere.

The ABAC scheme – nested within the broader set of advertising codes administered by the ASB – is supposed to serve the public interest. Performance ought to matter.

Unfortunately, based on my own experience, Diageo’s “very strict and long-standing guidelines and policies” for ensuring that alcohol is only promoted to adults didn’t work.  And when I made a complaint, the complaints handling system also broke down.

 

Just in time for Christmas drinks

12 weeks later, ABAC now has my complaint, just in time for Christmas drinks.

My guess is that in due course I’ll receive a response from the ABAC Complaints Panel advising that, in fact, spamming children with alcohol ads does not breach the current ABAC Code.

To get at that message, I’ll probably need to wade through a pile of steaming boilerplate about how the advertiser “shares the complainant’s concern”, “has an excellent advertising compliance track record”, and takes its obligations in relation to responsible consumption of alcohol “extremely seriously”.

At least, that was how the Complaint Panel’s adjudication read 4 years ago when the very same issue was brought to ABAC’s attention (complaint 118/11; 14 January 2012).

That’s where the real criticism lies.

There is no evidence that the alcohol industry, nor ABAC, are serious about imposing accountability for ensuring that alcohol advertisers cease spamming children watching children’s content.

ABAC’s Management Committee is dominated by alcohol and advertising industry associations.  They’ve known about this issue for 4 years and done nothing.  Don’t they monitor and act on complaints?

Call me old-fashioned, but performance matters.  ABAC and its signatories need to lift their game.

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ABAC Complaints Panel fails to respond to complaint about Bundaberg Rum advertisement streamed at 3 year old

In an earlier post I showed photos of an Australian alcohol company, Diageo Australia, spamming my 3 year old daughter with an advertisement for Bundaberg Rum when she clicked on a YouTube video of Dora the Explorer.

I saw this as an important public interest issue, so I decided to follow it up.  Here’s what’s happened since.

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Google (which owns YouTube) has been grappling with technical difficulties about the placement of inappropriate ads next to children’s content hosted on YouTube.

Until resolved, this practice creates bad PR for everyone.

It makes alcohol companies look desperate and mercenary.  And if you own the IP for Dora the Explorer or, say, Frozen, would you want alcohol companies messing with your child audiences?

The practice comes as no surprise to ABAC.

ABAC is the voluntary, alcohol advertising code and complaints scheme whose Management Committee represents Australia’s beer, wine, spirits and advertising industries.  The Australian government is also represented on the Committee, through the Head of the Department of Health’s Drug Strategy Branch.

In 2012, the ABAC Complaints Panel dismissed a complaint (118/11, 14 January 2012) about an alcohol ad placed prior to a children’s game on a children’s website aimed at 3-8 year olds.

On that occasion, the Complaints Panel wrote that “the Panel is only permitted to consider whether the content (not the placement) of the advertisement breaches the ABAC”.

 

Why is ABAC ignoring my complaint?

I wanted to confirm what kind of advertising the ABAC Code prevents, and what it allows.  So on 29 September 2015, I sent a complaint about Diageo’s Bundaberg Rum ad to ABAC, through the Advertising Standards Bureau portal.  On 1 October, the ASA forwarded it to the ABAC Complaints Adjudication Panel.

Under ABAC’s Rules and Procedures, the ABAC Management Committee has set a target of 30 days (1 month) for handling complaints.

It’s now 11 weeks since the complaint was referred to the Complaints Adjudication Panel.  The Panel is yet to acknowledge receipt.  It’s not a good look.

In the meantime, ABAC has published adjudications for complaints that were made more recently than mine.

According to ABAC, ABAC is the “centrepiece of Australia’s quasi-regulatory scheme for alcohol advertising”.

Former Senator the Hon Alan Ferguson was appointed the inaugural Chair of ABAC’s Management Committee in July 2015.

The Chief Adjudicator of the Complaints Panel is Professor Michael Lavarch AO, a former Commonwealth Attorney-General.

 

Reply from Minister Ley MP

The Hon. Sussan Ley MP, the Minister for Health, did respond to my letter raising the issue of alcohol spam to children watching age-appropriate content online.

She advised that the Department referred my letter to the ABAC Management Committee for consideration at their meeting on 24 November 2015.

Minister Ley also advised that in consultation with ABAC the Department will “undertake further discussions with [the] internet industry associations about this issue”.

The Department’s involvement in this issue is timely and welcome.

Minister Ley referred me to the recently-released report of the (now disbanded) Australian National Preventive Health Agency entitled: Alcohol Advertising: the Effectiveness of Current Regulatory Codes in Addressing Community Concern (February 2014).

This report concluded that current regulatory arrangements “on the placement of alcohol advertising are failing to sufficiently protect children and adolescents and in some cases are facilitating their exposure to alcohol advertising” [particularly when watching live sporting broadcasts on weekends and public holidays (pp 9, 99-100)].

This report called for a review of all aspects of alcohol advertising regulation during 2016.

Amongst other recommendations, it called for changes to the ABAC Code to ensure that it covers alcohol advertising in all media, including user-generated online content (such as YouTobe) (pp 119-121).  It called on ABAC to perform annual monitoring of alcohol marketing, with public reporting (122-123).

 

Google

I also received a reply on behalf of Senator the Hon. Mitch Fifield MP, the Minister for Communications, who confirmed that the Department urgently sought comment and action about the Diageo ad from Google.

Google has a number of policies and measures that are supposed to ensure that advertisements intended for adults are not spammed at children.  These include:

  • “alcohol advertisements are only shown to users that are logged in and who are aged 18 years and older;
  • Google excludes content that is family friendly;
  • Publishers have to opt in to show alcohol advertisements on their video content”.

Google advised the Department that none of these measures were effective in this case.

“[U]nfortunately [Diageo’s advertisement] was not correctly labelled as an alcohol advertisement, and Google’s other measures to identify inappropriate advertising content did not pick it up”.

 

Alcohol Advertising Review Board

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At the time I made a complaint to the ABAC Panel, I sent the same complaint to the Alcohol Advertising Review Board.

The AARB is is an initiative of the McCusker Centre for Action on Alcohol and Youth and Cancer Council WA.  It administers an alcohol advertising content code as well as a placement code.

The AARB’s Placement Code contains the following provision:

“8 Internet

Alcohol Advertisements shall not appear online in connection with content that appeals or is likely to appeal to Young People.”

On 23 September, the AARB sought comment from Diageo Australia.  Diageo refused to participate in the AARB process, “noting that it is a signatory to and participates in the Alcohol Beverage Advertising Code (ABAC) Scheme.”

Earlier, Diageo told Fairfax journalist Amy Corderoy that the company “has very strict and long-standing guidelines and policies to ensure that our products are only advertised or promoted to people aged 18 and over” and that the company would investigate.

The AARB found that by streaming its ad with children’s content on YouTube, Diageo was in breach of the provision above.

You can read the AARB’s determination here.

 

The alcohol industry needs to keep away from kids’ play areas

Here’s the bottom line.

The business of encouraging people to purchase lots of alcohol is the alcohol industry’s business.  If they want to engage in that business, they ought to give children’s content a wide berth.

I don’t yet see any evidence that alcohol companies have fixed the problem or that they are willing to be held accountable for their ethical obligation to keep away from kids’ play areas.

ABAC should respond to my complaint, or explain why it is incapable of doing so.

On my reading, the ABAC Code doesn’t prevent alcohol companies from spamming kids with liquor ads online, provided those ads do not breach other Code provisions.  If the ABAC Code is to maintain credibility and public trust, this gap must be urgently addressed.

As a forum dominated by industry associations with a natural bias towards alcohol advertising, ABAC’s Management Committee may not be the best forum for addressing long-standing gaps in advertising regulation.

Spamming kids with liquor ads is a public interest issue, and the public should be kept informed about how industry and the government are going to ensure this practice ceases.

 

Are you interested in studying about health law and regulation?  Sydney Law School offers a Master of Health Law with units of study that explore health care law, public health law, mental health law, and global health law and governance.  Click here and here for more information.

Santa: jolly gift giver, or creeping trespasser?

Stop the sleds
Picture from: https://www.facebook.com/DIYrainbow/timeline.

In honour of the silly season, I’m taking a break from health law to venture into torts, another area that I teach into. This post is dedicated to all the hard-working students in my torts tutorial groups, and to anyone who’s ever wondered…. Can we sue Santa?

Christmas. The most wonderful time of the year. Traditionally characterized by peace, joy, goodwill towards all men (presumably women are included too), and not uncommonly, over-consumption of alcohol, processed meats, and high-sugar, high-calorie, figgy pudding.

The festive season is also a fruitful source of legal risk. Consider, for example, Uncle Bob’s defamatory comments about the dryness of the turkey, or Cousin Susan’s negligence in breaking your favorite Christmas ornament. Here we examine one of Christmas’ most legally fraught situations: the jolly bearded man flying over your house on a sleigh. Yes, that’s right: Santa.

Are you tired of sleigh bells ringing, and reindeer leaving unwanted gifts on your lawn? If so, what are your legal options?

Trespass to land

First, let’s consider trespass to land. This cause of action could arise from two aspects of Santa’s annual present delivery:

  • Overflight by Santa’s sleigh; and/or
  • Santa’s entry onto property to deliver presents.

An incursion into airspace can form the basis of an action in trespass where it takes place at a height that may interfere with the ordinary use and enjoyment of land (Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479). If we were to sue Santa for aerial trespass under the first scenario, a key question would be whether his flight is at such a height that it would not interfere with the claimant’s potential use or enjoyment of his or her land. However, it is likely that at least part of Santa’s flight could intrude on a claimant’s airspace, given that Santa flies low enough to land on the roofs of people’s houses.

In the second scenario, Santa intentionally enters directly onto land, meeting the basic test for trespass to land. However, we need to keep in mind that the law grants implied consent for members of the public to go up the pathway or driveway to a house in order to talk to the person inside (absent any express evidence to the contrary). Could it be said that this implied license extends to entering premises via chimney, an extremely unorthodox method of entry? There may be a stronger argument of implied consent once Santa has entered a person’s house, if stockings have been hung up for him to fill, and there are mince pies laid out for him on the mantelpiece.

Nuisance

If Santa’s flight falls outside the claimant’s airspace, then we could consider a claim in nuisance.  A cause of action would hinge on whether a the plaintiff could show some kind of interference with his or her enjoyment or use of land, for example, through excessively high-volume “ho-ho-hos” or noxious fumes emitted by reindeer polluting the airspace.

The court would carefully weigh a range of factors in determining whether Santa’s activities amount to a substantial and unreasonable interference with use or enjoyment of land. The court might take into account that any noise occurs late at night; that the plaintiff may be living under the Sydney Airport flight path and thus already subject to substantial aircraft noise; and that Santa’s present delivery brings joy to millions of children around the world (although the social utility of an activity will not prevent it from being a nuisance if the activity is considered unreasonable).

Another consideration might be that any interference is likely to be a temporary, night-before-Christmas occurrence. However, in Munro v Southern Dairies [1955] VLR 332 the court acknowledged that the loss of even a single night’s sleep could amount to a substantial interference, say if the loud ringing of sleigh bells woke you up at 2am after a busy day making Christmas cake.

In NSW, section 72 of the Civil Liability Act 2002 bars actions in trespass or nuisance on the basis of overflight by aircraft, so long as the flight is at a height that is reasonable, and the applicable air navigation regulations are complied with. Whether Santa complies with the Air Navigation Regulations 1947 (Cth) is an open question, but it may be that sections of his flight take place at a height that is unreasonably low, meaning that an action in trespass or nuisance remains open to an aggrieved plaintiff. A successful claimant could seek damages, or perhaps an injunction to prevent a similar annoyance next Christmas.

Damage by Aircraft legislation

The final issue to consider is a statutory cause of action available under the Damage by Aircraft Act 1999 (Cth), which provides compensation for members of the public on the ground who suffer personal injury or property damage as the result of an air accident.

Santa’s sleigh fits within the definition of “aircraft” in section 4 of the Act, but section 9(4) would be a critical hurdle as it limits the Act’s application to certain categories of aircraft and only some types of flights. Plaintiffs in the ACT and NT would clearly meet the requirements of section 9(4), as in their case Santa is engaged in “air navigation to or from, or within, the Territories” (s 9(4)(c)(iv)). Plaintiffs in one of the States may struggle with the provision’s requirements, but these could be met if the sleigh is classified as an aircraft “engaged in international air navigation” under section 9(4)(c)(i).

If this initial hurdle could be overcome, section 10 requires potential claimants to show that there has been some kind of personal injury or material damage caused by an impact with the aircraft, or part of the aircraft damaged in flight, or with a person, animal, or thing that dropped off or fell from the aircraft. Section 10 would be satisfied if, for example, Santa crash-landed into your house, or dropped a load of presents off the sleigh that took a chunk out of your lawn. The Act is strict liability (s 11), meaning that a plaintiff can recover without having to prove intention or negligence on Santa’s part.

If the Commonwealth Act doesn’t apply, then plaintiffs in NSW could consider a similar cause of action under section 73 of the Civil Liability Act 2002 (NSW), which imposes strict liability upon the owner of an aircraft for all surface damage caused by an aircraft while in flight, or during take-off or landing, and by articles or persons falling from an aircraft.

This blog post only scratches the surface of Santa’s liability, and there are many other aspects of Santa’s operations that may raise legal issues: how many sherries has Santa been drinking while flying that sleigh? Are the Elves paid penalty rates for their overtime work during Christmas? What kind of conditions are the reindeer kept in?

However, one aspect of good legal practice is knowing when not to bring an action. I certainly wouldn’t suggest that you really sue Santa, and any Christmas-related legal action should be brought only on the basis of advice from a properly qualified (and entirely serious) solicitor. On that note, best wishes for a relaxing, and hopefully litigation-free, festive season.

We need to separate the neuroscience hype from the reality

This article by Sascha Callaghan and Allan McCay,  was published in the Sydney Morning Herald, 30 November 2015.

Oregon serial killer Dayton Leroy Rogers was recently sentenced to death for the fourth time, after a strongly argued case that the sentence should be reduced to life in prison.

Rogers’ lawyer argued that scans indicated damage to parts of his brain could have caused his manic killing sprees. The thrust of the argument was that brain damage reduced his responsibility for the crimes.

The Rogers case is part of an emerging trend for neuroscience evidence to be brought to court to help the defence in criminal trials.  That said, the use of neuroscience in court is not entirely new. Rogers has made similar claims for some time. However, there are reasons to believe neurolaw cases are increasing in the US and Australia.

In 2011, a member of the Tasmanian Legislative Assembly, Terry Martin, was found guilty of child sex offences. Neuroscience evidence made a major difference to the final outcome. The sentencing judge accepted that medication for the treatment of Parkinson’s disease had led to Martin’s compulsive sexual behaviour and that this was a significant mitigating factor.

In light of the expert evidence, Martin served no further time in jail.

In civil matters, neuroscience is assisting personal injury claimants seek compensation for pain and suffering. Courts are now looking to neuroscience evidence for “proof” that injuries such as pain or psychiatric illness are not “all in the plaintiff’s head”.

Earlier this year, brain research into post-traumatic stress disorder helped nurse Karen Casey to recover compensation after a terrifying plane crash that left her with multiple injuries and debilitating PTSD.

Under international law compensation for aviation injuries need only be paid in respect of “bodily injuries” and not purely mental or emotional injuries. Historically, PTSD has been regarded as a mental injury, but Casey’s doctors referred to neuroscience evidence showing that PTSD occurs alongside changes in the brain.

On this evidence, Justice Monika Schmidt of the NSW Supreme Court decided that Casey’s PTSD was “not merely the result of an injury to her mind” but that it also “involves an injury to her brain”.

Casey is the first Australian to recover damages for PTSD as a bodily injury.

Some commentators are now suggesting neuroscience will revolutionise the legal system, that courts will become concerned with managing those with malfunctioning brains, and that we will cease to care about “outdated” notions such as blame and deserved punishment; and that courts may eventually have access into our private thoughts, with sophisticated lie detection technology.

But is this just science fiction?

A research collaboration between Macquarie University and the University of Sydney aims to answer these questions. The Australian Neurolaw Database aims to separate neurolaw hype from reality. We are examining what Australian courts are doing in response to evidence derived from neuroscience.

Cases in the database, such as Martin’s and Casey’s, clearly demonstrate the ethical and legal significance of neuroscience evidence in some court decisions, although it does appear that judges are taking a reasonably cautious approach.

Traditional evidence is still the gold standard for the courts. For now at least, what people have done and said remains more persuasive than scans.

Important policy questions remain for the future.Do we allow every new technology into court? Should citizens have a right to mental privacy as pupil-scanning and other technologies become more prevalent? Should evidence gathered about what we are thinking and feeling via pupil and skin temperature data be excluded from courts? Should neuroscience-based dangerousness tests be used to determine whether prisoners should be granted parole?

Very soon policy-makers will be able to look to the Australia Neurolaw Database to help develop answers to these difficult questions.