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					08/598 DECISION Meeting 28 January 2009 Complaint 08/598

Complainant: D. Penk Advertisement: Dmg World Media Complaint: The newspaper advertisement for the Big Boys Toys show, which incorporated the NZ Motorcycle show, was headed “IF YOU’VE EVER ADJUSTED YOURSELF JUST BECAUSE IT FELT GOOD …YOU’RE GONNA LOVE THIS.” A man was pictured wearing only underpants, with hands holding the edge of the top of the underpants. Complainant, D. Penk, said: “Type: Newspaper Where: New Zealand Herald Monday 10 November 2008 Page A17 Who: Big Boys Toys - media partners include NZ Herald Product: motorcycle show etc Complaint I object to the indecent behaviour which is inappropriate to a non-restricted publication: The text: 'If you ever adjusted yourself just because it felt good' - where 'adjusted yourself’ refers to a man moving the position of his penis with his hand The photograph: shows the body of a man dressed just in underpants or togs, his hands pulling out his pants ready to insert his hand into his pants.”

The Chairman ruled that the following provision was relevant: Code of Ethics Rule 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).

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The Advertiser, Dmg World Media, also on behalf of the Agency, Blackwood Communications Group, said: “Please find herewith comments regarding Big Boys Toys Advertising complaints 08/634 & 08/598. This response is submitted on behalf of dmg world media and Blackwood Communications Group our appointed communications agency. I would like to address each complaint individually in relation to the code of ethics … as follows: Complaint 08/598 - Big Boys Toys Newspaper Advertisement The Big Boys Toys show is a celebration of all things male, including the idiosyncrasies and peculiarities sometimes demonstrated by this portion of the NZ population. The Newspaper advertisement intends to make humorous observation of this activity only, not promote or endorse it. We do not dispute the complainant's definition of 'adjusted', however we did not believe that referring to the act of `adjusting' would be regarded as indecent by most people, more a subjective line of copy that could be interpreted at will. Given that the advertisement contains no offensive language, no mention of specific male anatomy, nor contains any nudity, we did not believe that this advertisement would cause serious or widespread offence as defined by Rule 5. Again dmg would like to apologise for any offence taken. We look forward to the results of the complaint boards findings; please don't hesitate to contact me should you need any further clarification.”

The Media, The New Zealand Herald, said: “The advertisement was booked and delivered as camera-ready for publication. We did not consult the advertising code in relation to this advertisement because the content did not raise any warning bells at any point during the booking process that the advert could be misleading to consumers. Essentially the advertisement in question was accepted in good faith from Chemistry Media.” Deliberation The Complaints Board perused the complaint and the correspondence relating to the advertisement. It noted that Complainant, D. Penk, was of the view that the advertisement was offensive as it showed “behaviour which is inappropriate to a non-restricted publication.” The Chairman directed the Complaints Board to consider the complaint with regard to Rule 5 of the Code of Ethics.

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The task before the Complaints Board was to consider whether the advertisement was likely to cause serious or widespread offence in the light of generally prevailing community standards, taking into account the product, medium, context and audience. The Complaints Board noted that the product being advertised was a show targeted at men. It then took into account the audience of the publication, which was a newspaper with a generally adult readership. Turning to the content of the advertisement, the Complaints Board said the image itself was not offensive, and it did not contain nudity. It noted that the behaviour referred to in the advertisement was confined to men, the target audience for the product advertised. The Complaints Board expressed the view that while the advertisement was somewhat in poor taste, and was offensive to D. Penk, it was saved by its irreverent humour and did not meet the threshold to be said to be likely cause serious, or widespread offence in the light of generally prevailing community standards. As such, the Complaints Board ruled that it was not in breach of Rule 5 of the Code of Ethics. The Complaints Board ruled to not uphold the complaint.

Decision: Complaint Not Upheld

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DECISION Chairman’s Ruling 17 March 2009 Complaint 08/598 Appeal 09/013

Complainant: D. Penk Advertisement: Dmg World Media Applicant: D. Penk

Complaint: The newspaper advertisement for the Big Boys Toys show, which incorporated the NZ Motorcycle show, was headed “IF YOU’VE EVER ADJUSTED YOURSELF JUST BECAUSE IT FELT GOOD …YOU’RE GONNA LOVE THIS.” A man was pictured wearing only underpants, with hands holding the edge of the top of the underpants.

Complainant, D. Penk, was of the view that the advertisement was objectionable and not appropriate for a non-restricted publication. The relevant provision was Rule 5 of the Code of Ethics. The Complaints Board ruled to Not Uphold the complaint at its meeting on the 28th of January 2009. Applicant, D. Penk, submitted an application for appeal in correspondence dated 1st March 2009. This said: “Thank you for sending me a copy of the Decision concerning the above Complaint.

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However I am not happy with the decision of the Complaints Board not to uphold my complaint. Please note the following points in reply to your letter: 1.From Dmg Media: `The Big Boys Toys show is a celebration of all things male, including the idiosyncrasies and peculiarities sometimes demonstrated by this portion of the NZ population' This is irrelevant to the current issue as it tells us nothing about whether the advertisement is offensive or not. Such a statement could equally be used to vindicate the public airing and presentation of any male-related topic, however explicit and/or exploitative. 2.From Dmg Media: ‘The newspaper advertisement intends to make humorous observation of this activity, not promote or endorse it.' My objection was to the featuring of this offensive advertisement which in itself implies at least the promotion --and by implication the endorsement as well, If Dmg Media intends neither to 'promote or endorse' the public exhibition of this activity it needs to include such a statement in the advertisement itself. 3.From Dmg Media: 'however we did not believe that referring to the act of 'adjusting' would be regarded as indecent by most people, more a subjective line of copy that could be interpreted at will.' (a) note that it is the public nature of this activity which is at issue, not a private incident (b) the statement 'a subjective line of copy that could be interpreted at will' is meaningless goobledegook. What hidden meaning is likely to occur as a result of a Herald reader 'interpreting the advertisement at will'? 4.From The NZ Herald: 'the content did not raise any warning bells at any point during the booking process that the advert could be misleading to customers'. Please note that I did not complain that the advertisement was 'misleading to customers'. 5.From your Deliberation: 'The Complaints Board.... took into account the audience of the publication, which was a newspaper with a generally adult readership.' 1. The statement 'generally adult readership' does not take account of the fact that this newspaper is to be found on the kitchen table of thousands of New Zealand family homes every day -and that the most offending part of the advertisement was its graphic image, easily accessible to even the youngest child. 2. Further, as the teacher of primary-aged children 1 have been encouraged by the Herald's 'Newspapers in Education' schools programme to recommend using the daily Herald as a student resource for studies in current affairs - which I regularly do. 3.From your Deliberation: 'it was saved by its irreverent humour'.

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'Saved' from what? The advertisement has a straightforward message which is not particularly humorous.” The Chairman perused the application for appeal. She noted that there were five grounds upon which an appeal was able to proceed. These were listed at Clause 6(a) of the Second Schedule of the Advertising Standards Complaints Board Complaints Procedures and were as follows: (i) (ii) (iii) The proper procedures have not been followed. There is new evidence of sufficient substance to affect the decision. Evidence provided to the Complaints Board has been misinterpreted to the extent that it has affected the decision. The decision is against the weight of evidence. It is in the interests of natural justice that the matter be reheard.

(iv) (v)

The Chairman observed that many of the issues raised in the Applicant’s appeal application were with the responses to the Complaint from the Advertiser, Dmg Media, and the Media, The NZ Herald. The Chairman clarified that these responses, while forming part of the broader decision, did not constitute the views of the decision making body, the Advertising Standards Complaints Board. With regard to the reference in the appeal application to the Complaints Board deliberation, the Chairman noted that the Applicant disagreed with the Complaints Board decision to not uphold the complaint. Further, that the Applicant disagreed with its opinion that the publication in question, a newspaper, had “generally adult readership” and that the complaint was “saved by its irreverent humour”. The Chairman said that although the Applicant disagreed with the Complaints Board decision to not uphold the complaint, this in itself was not a ground for appeal. She confirmed the opinion of the Complaints Board that newspapers generally were targeted at adult readers. She noted that no other ground for appeal was raised in the application. As the appeal application did not meet any of the grounds for appeal as set out at Clause 6(a) of the Second Schedule of the Advertising Standards Complaints Board Complaints Procedures, the Chairman ruled that the application for appeal be declined. Chairman’s Ruling: Application for Appeal Declined


				
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