Advertising touching on sensitive areas.
Many big and famous brands had to suffer serious backlashes from promotional messages or headlines touching on sensitive areas such as religious feelings, political beliefs, or gender issues.Sometimes advertisers learn a hard lesson – and pay a hefty price – when their commercial communication ends up touching on areas the targeted public turns out to be extremely sensitive about.
There are many examples of brands suffering serious backlashes from advertising making use of claims or headlines relating to religious feelings, political beliefs, or gender issues.
Standards to bear in mind.
In most countries the provisions (as set in both, Statute law as well as in Self-Regulation Codes) require promotional messages to adhere to the principle of ‘social responsibility’. Such principle calls for commercial communication to “respect human dignity and (to) not incite or condone any form of discrimination, including that based upon race, national origin, religion, gender, age, disability or sexual orientation” (so Section 4 of the ICC Consolidated Code of Advertising and Marketing Communications Practice).
However, the implementation of such requirement often involves coming to terms with another fundamental right, also benefitting from legal protection at the highest (usually, constitutional) level, i.e. with the right to ‘freedom of expression’ or with that of ‘freedom of commercial speech’ in some jurisdictions.
Freedom of expression versus freedom of commercial speech.
Over the years in several jurisdictions (mostly European ones) there has been an intense debate on whether ‘freedom of expression’ should be intended as broadly covering everyone’s right “to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers” (so Article 10/1 of the Rome Convention for the Protection of Human Rights and Fundamental Freedoms), where protection is granted to all kinds of opinion and all sorts of information. Legal scholars opposing such broad interpretation of this right, suggested that commercial communication should be placed into the context of ‘freedom of trade’, an area where an individual’s right may be subject to restrictions, justified by public interest.
The stance of the European Court of Human Rights (ECtHR).
On both sides of the Atlantic, the clash between limitations for promotional messages and freedom of speech has occupied Courts at the highest level, leading to differing opinions and outcomes. The European Court of Human Rights (ECtHR), on several occasions, has set that the Convention (for the Protection of Human Rights and Fundamental Freedoms) “guarantees freedom of expression to everyone” and that “no distinction is made in it according to whether the type of aim pursued is profit-making or not ...” (so judgement February 24, 1994, case Casado Coca vs. Spain, page 13), hence making clear that advertising falls within the context covered by the right to freedom of speech.
However, such statement may not be stretched to the point where ‘advertising’ would enjoy a ‘free pass’ under the (freedom of expression) principles laid down in Article 10 of the Convention. In fact, in many decisions the ECtHR has explained that there is a clear difference between published content favoring a public debate or giving raise to a discussion on an issue of general interest and ‘commercial speech’. According to the Court’s jurisprudence, in the first case, messages of general interest benefit from a high level of protection under Article 10 if the Convention (restrictions being allowed only as exceptions). Conversely, with respect to ‘paid for’ (primarily ‘money driven’) content, the Court feels that the Article 10 shield results less effective as national Authorities dispose of a wider margin of discretion and appreciation as to imposing bans or restrictions on such commercial communication.
Hence, in the Casado vs. Spain case (judgment of February 24, 1994) the ECtHR conceded that protection under Article “... does not apply solely to certain types of information or ideas or forms of expression ..., in particular those of a political nature; it also encompasses artistic expression... , information of a commercial nature ... and even light music and commercials transmitted by cable” (so, Section 35). But then the Court also added (in Section 51) that “for the citizen, advertising is a means of discovering the characteristics of services and goods offered to him. Nevertheless, it may sometimes be restricted, especially to prevent unfair competition and untruthful or misleading advertising. In some contexts, the publication of even objective, truthful advertisements might be restricted in order to ensure respect for the rights of others or owing to the special circumstances of business activities and professions. Any such restrictions must, however, be closely scrutinized by the Court, which must weigh the requirements of those particular features against the advertising in question ...”, distancing itself from what – under a US perspective – would result in a strict First Amendment approach, leaving considerable space for case-by-case assessments.
A recent case befor the ECtHR.
Recently the issue became topical once again, when the ECtHR was called to deal with case originating from an advertising campaign for a clothing line, deemed as offensive and blasphemous to the religious beliefs of Christians and therefore sanctioned by a Regulatory Authority in Lithuania with a fine (of Euro 580). The questioned campaign presented a female (wearing a white dress and holding a rosary) and male character (in jeans and with tattoos on his bare torso) with a halo around their heads. The images featured the following headlines: “Mother of God, what a dress”, “Jesus Mary, what a style”, “Jesus, what a jeans”.
The advertiser felt that the sanction infringed on his right to freedom of expression and brought the case in front of the ECtHR, which issued its decision on January 30, 2018 (Fourth Chamber – Application no. 69317/14, Sekmadienis vs, Lithuania). In its decision – which appears of significant interest as it extensively deals with issues referring to advertising potentially offensive to religious beliefs - the ECtHR:
- Found that the discussion was about the compatibility of the Convention with a national law prohibiting ads violating ‘public morals.
- Acknowledge that the submitted one was a first (sort of ‘pilot’) case for Lithuania, no precedents being found in national case-law (however, the Court deemed this aspect as not relevant, as there always had to be a ‘first case’ with respect to the application of law).
- Expressed doubts “as to whether the interpretation given by the domestic courts in the present case – namely, that the advertisements violated public morals because the use of religious symbols in them was ‘inappropriate’ – could reasonably have been expected”, adding that the “Court cannot stay blind to the fact that, while the applicant company’s case was still ongoing, the national authorities felt the need to amend the Law on Advertising in order to establish an explicit prohibition on advertising which expressed ‘contempt for religious symbols’ ...” (so Section 67).
On such premise, the Court then went on to assess whether the ban applied to the applicant’s advertising could be justified as an ‘interference necessary in a democratic society’.
From this perspective the Court reasserted some of the general principles expressed in its jurisprudence and remined that:
- “Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for everyone’s self-fulfilment ... applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions which must, however, be construed strictly and the need for any restrictions must be established convincingly” (so Section 70).
- “The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10” (Section 71).
- “The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation.... What the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ..” (Section 72).
- “The Court further reiterates .... that it has consistently held that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest ..”, while “.. a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion ..” and that “similarly, States have a broad margin of appreciation in the regulation of speech in commercial matters or advertising” (Section 73).
Applying those principles and precedents to the case at hand, the Court concluded that:
- “.. the advertisements had a commercial purpose – to advertise a clothing line – and were not intended to contribute to any public debate concerning religion or any other matters of general interest .... Accordingly, the margin of appreciation accorded to the national authorities in the present case is broader (see paragraph 73 above). Nonetheless, such margin is not unlimited and the Court has to assess whether the national authorities did not overstep it” (Section 76).
- “Having viewed the advertisements for itself, the Court considers that at the outset they do not appear to be gratuitously offensive or profane, nor do they incite hatred on the grounds of religious belief or attack a religion in an unwarranted or abusive manner ..” (Section 77).
- “...It was therefore for the domestic courts to provide relevant and sufficient reasons why the advertisements, which, in the Court’s view, were not on their face offensive, were nonetheless contrary to public morals” (Section 78)
- It could not “.. accept the reasons provided by the domestic courts and other authorities as relevant and sufficient. The authorities considered that the advertisements were contrary to public morals because they had used religious symbols ‘for superficial purposes’ had ‘distort[ed] [their] main purpose’ and had been ‘inappropriate’. In the Court’s view, such statements were declarative and vague, and did not sufficiently explain why the reference to religious symbols in the advertisements was offensive, other than for the very fact that it had been done for non-religious purposes .... It also observes that none of the authorities addressed the applicant company’s argument that the names of Jesus and Mary in the advertisements had been used not as religious references but as emotional interjections common in spoken Lithuanian, thereby creating a comic effect” (Section 79).
- “the fact that approximately one hundred individuals had complained about the advertisements” appeared irrelevant as “freedom of expression also extends to ideas which offend, shock or disturb”, reminding that “in a pluralist democratic society those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith,..” (Section 81).
- Equally irrelevant appeared the Lithuanian Government’s argument that “..the advertisements must have also been considered offensive by the majority of the Lithuanian population who shared the Christian faith..”, being it impossible to assume that “everyone who has indicated that he or she belongs to the Christian faith would necessarily consider the advertisements offensive”, and having the Government failed to provide “any evidence to the contrary”; furthermore, “even assuming that the majority of the Lithuanian population were indeed to find the advertisements offensive, the Court reiterates that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights to, inter alia, freedom of expression would become merely theoretical rather than practical and effective as required by the Convention” (Section 82).
- Subsequently, “the domestic authorities failed to strike a fair balance between, on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression. The wording of their decisions – such as ‘in this case the game has gone too far’, ‘the basic respect for spirituality is disappearing’, ‘inappropriate use [of religious symbols] demeans them [and] is contrary to universally accepted moral and ethical norms’ and ‘religious people react very sensitively to any use of religious symbols or religious persons in advertising’ – demonstrate that the authorities gave absolute primacy to protecting the feelings of religious people, without adequately taking into account the applicant company’s right to freedom of expression” (Section 83).
- Accordingly, in the submitted case “there had... been a violation of Article 10 of the Convention” (Section 84).
The lesson to learn.
The take away from this recent decision: when addressing sensitive areas/topics (as religious or political issues) in their campaigns, advertisers cannot always rely on the ‘freedom of speech’ principle to avoid complaints or objections from the targeted audience. Being those issues heavily influenced by local culture and tradition, it will be up to the views of a national Court assessing whether a promotional message has the potential of resulting ‘offensive’ or ‘blasphemous’ to the public. Trying to predict a national Court’s feelings towards such issues based on your standard is not a healthy exercise.