Just look around. On almost every screen, billboard, magazine cover and website are delightfully beautiful people – young, with flawless complexions, perfect make-up and perfectly groomed hair looking back at us. It seems life is timeless for them – we’ve already stopped looking for wrinkles, imperfections or signs of fatigue on these photos.
Well, all of us?
The omnipresent perfection, besides attracting the interest of sociologists, also has an important legal dimension – how long can the average consumer catch the intended exaggeration and still remain legally acceptable? Who is the average recipient and what should he know, understand and finally accept on the advertisingmarket?
The Photoshop revolution
On the 1st of October of 2017 in France, a decree regulating the principles of using computer enhanced or otherwise retouched photographs in advertising went into effect. The law doesn’t concern all “improved” pictures, but only those presenting bulked up or slimmed down models. The regulation is aimed at fighting anorexia and other disorders related to aspiring to the impossible – unnatural body proportions which compromise a person’s health. Penalties violations seem to be harsh – they can reach 30% of the budgeted ad campaign, and in each case no less than 37 500 euro.
France is not a pioneer in knocking unrealistic ideals from their pedestals, like Barbie dolls as compared to naturally slim women. Laws regulating the scope of photo manipulation have also been successfully applied in Israel for a few years. In Great Britain however, an independent organization ASA (Advertising Standards Authority) is on alert when it comes to realism in presenting the human form. This organization has extorted advertisers many times to resignation from presenting campaigns with impossibly beautiful and unreal people.
Legal trends concerning retouching, digital embellishment, and other Photoshop enhancements raises questions as to what is an acceptable amount of exaggeration in advertising, and how much is harmfully deceiving.
The limits of imagination
The common understanding of an ad is that it is a statement directed to potential clients, aimed at encouraging and persuading the recipients to purchase a commodity or to use a service. Available judicial decisions show that the essence of advertising is the suggestive representation of goods and services aimed at evoking an irresistible desire to acquire it by a recipient (e.g. The Judgment of the Supreme Court of 26th of January 2006, file reference number V CSK 83/05). The definition from the outset forces us to distinguish between biased and misleading messages for advertising purposes – every ad in order to fulfill its task, will be non-objective (because it exposes only the advantages of the product), and every recipient should be aware of this.
Hence, certain doses of exaggeration and suggestive presentation of products in ads is permissible. However as usual in law, the devil is in the details. Thus the right understanding of the word “certain”.
In the ad business, during the production marketing messages, the digital processing of pictures and movies is widely used, often with the digital version of the materials on the packaging of products, added by computer in post-production. However, the assumption is that the recipients are prudent, critical and aware of the use of such tools, and are capable of analyzing advertising through the prism of this awareness, and therefore approach the material with appropriate distance and “tongue in cheek”. At least this is how the average client is supposed to be perceived in jurisprudence (both Polish and European), state organs, with such doctrines supporting them.
According to the President of the Office of Competition and Consumer Protection „an ordinary consumer is aware of the specificity of language of advertisements’, its certain conventionality, tendency to exaggeration or metaphors, as well as need to refer to commercials with a rational distance” (decision of the President of the Office of Competition and Consumer Protection from 9th of December 2010, number RPZ 28/2010). Accepting the model of an educated and experienced receiver, means that using such pattern should be examined in terms of their compliance with the law, and therefore, should evaluate taking into account the legitimate expectations of the consumer in relation to the advertised product (for example, the European Court of Justice in a judgment of 4th of April 2002 in Case C-465/98 Adolf Darbo). However, the Directive of the European Parliament and the Council 2005/29/WE about unfair market practices (which is implemented by the Act on Counteracting Unfair Market Practices on the Polish Market) predict straight, that pronunciation of exaggerated assertions and those that should not be understood literally, should be treated as a common and lawful advertising practice (Article 5, paragraph 3 of Directive).
The truth is relative
In some cases advertising content, although formally fake, doesn’t go beyond the acceptable pale of exaggeration. The purpose of using the ad is to expose the positive attributes of the product or service. Nevertheless, it’s important to remember that information provided in the ad, which is a statement of facts (not a product assessment or metaphor) is subordinated to the authentic verification – in this case, misleading ads are those that attribute features to the product it doesn’t have. Hence, if the consumer after watching the ad can quite rationally assume, that the product has particular advantages, while in reality it’s doesn’t, we can determine it is a misleading ad. It’s difficult to imagine anyone assuming that after drinking an energy drink, wings will grow or he will be able to fly. However, the assumption that the mentioned energy drink stimulates and facilitates concentration will be justified.
In isolation from specific examples, it’s difficult to create precise guidelines that allow us to ascertain from the outset whether we have exaggerated or not. Law practice tells us that the only proper and universal criteria is common sense.