Last Updated 18 Jan 2021

Control of Sex in Advertising

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The Control of “Sex in Advertising” in France Jean J. Boddewyn, and Esther Loubradou The growing use and abuse of sex in French advertising prompted strong reactions from consumer and feminist associations, and resulted in extensive and strict public and private controls. Recently, the French self-regulatory system has developed a system involving various stakeholder organizations to analyze social trends related to the acceptability of sexually-oriented ads, develop new voluntary guidelines, solicit complaints and handle them through an independent Jury.

The number and proportion of controversial ads has significantly decreased, and French advertising practitioners have been nudged to accept greater professional responsibility in exchange for the freedom of creativity to which they aspire. A few U. S. developments parallel this increasing cooperation between the public and private controllers of the old issue of “taste and decency in advertising” which is not fading in societal importance. Jean J. Boddewyn is Emeritus Professor of Marketing and International Business, Baruch College (CUNY) (email: Jean.

[email protected] CUNY. edu). He has written extensively since the 1980s on the regulation and self-regulation of advertising around the world. Esther Loubradou holds a Master’s Degree in Communications and a post-graduate degree in Mass Media Law. She is a doctoral candidate in Advertising, Law and Communications at the University of Toulouse, France. Her dissertation deals with Decency and Sexual Content in Mass Media in France (email: [email protected] fr). 1 Keywords: sex in advertising, advertising control by state and industry in France and the United States.

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Many Americans probably associate the French with sexual laxness and have seen their sexcharged ads for perfumes and cosmetics. Yet, France applies very detailed and strict controls – both public and private – to the use of sex in advertising and courts have ruled in a few notorious cases. Besides, its advertising self-regulatory body reports annually to a government ministry about the progress of its endeavors after conducting an annual survey of sex-related ads in certain media, and relatively few ads have recently been found in violation of French laws and industry guidelines.

What explains this paradoxical situation, what are the special causes and features of the French control of sex in advertising, and – briefly – how does the U. S. system compare with it? Since nothing has been published in English on the French control system bearing on sex in advertising, this short Note has to be mainly descriptive and interpretive as a springboard for more theoretical and policy-related research. Still, in answer to admonitions to involve various disciplines (Richards 2009; Rotfeld and Stafford 2007; Rotfeld and Taylor 2009), this study is multi-disciplinary to the extent that cultural (e. g. the evolution of sexual mores), political (e. g. , the impact of pressure groups), legal (e. g. , the development of “co-regulation” combining public and private initiatives) and ethical (e. g. , the “professionalization” of advertising practitioners) factors are used to interpret the French situation. One of the authors is French and an expert in communication law while the second one is American and has conducted many studies of advertising regulation and self-regulation in multiple countries. This Note’s public-policy implications are less evident because of the significant differences between the French and U.

S. legal and self-regulatory systems, which preclude easy cross-border borrowings. Yet, there is a significant evolution in the United States toward greater cooperation 2 between the U. S. government and some self-regulatory bodies, which is briefly outlined in the last section of this Note. This development can benefit from knowing how the French system has moved toward combining the compulsory and voluntary approaches to the control of sex in advertising, and how the doubts expressed about the effectiveness of self-regulation (e. g. , Rotfeld 2003) can be partly assuaged.

Besides, valid concerns keep being expressed in the United States about the potential impact of “sexualized violence” against women in ads on the acceptance of such behavior (Capella, Hill, Rapp and Kees 2010) so that the abuse of sex in advertising is likely to remain an important U. S. socio-political issue whose resolution can profit from knowing the French experience. For these purposes, we will start by analyzing the stimuli that prompted French legal and self-regulatory responses, and conclude with a brief comparison of the French and U. S. control systems. Stimulus: the “Sex in Advertising” Issue Sex in advertising” as a form of “selling sin” (Davidson 2003) has long generated negative reactions. Thus, the first International Code of Advertising Practice of the International Chamber of Commerce already stated in Article 1 of its 1937 Rules that: “Advertisements should not contain statements or visual representations which offend against prevailing standards of decency. ” This principle has been adopted by many developed and developing countries, and it is expressed in one form or another in their laws and codes of conduct. Much of the decency issue used to be about goods and services thought to be “unmentionable” (e. g. toilet paper and feminine-hygiene products) and whether an ad’s execution was in “good taste” and shown at the appropriate time – with the radio and television broadcasting of objectionable commercials being limited to late hours of the day. Nowadays, sexually-oriented ads apply to all sorts of goods and services (e. g. , clothing, perfumes, jewelry, 3 alcohol, video games, cell phones and movies), they are available on the Internet at all hours, and they frequently emanate from advertisers in the luxury-goods sector (e. g. , Dior). Such audacious practices reflect the modern sexualization of mores and values in Western countries (e. . , Giddens 1993; McNair 1996; Reichert 2003) – with several French books having such evocative titles and subtitles as “The Pornographic Consensus,” “Sexyvilisation” and “The Tyranny of Pleasure. ” It helps explain the advent around 2000 of sexually-oriented ads that combine pornography, violence and submission, and reflect McNair’s (2002) “Porno-chic” concept which incorporates into cultural production some practices (such as fellatio) and taboos (such as pedophilia) that transfer the transgressive qualities of pornography into mainstream culture. To categorize the scope of sex in advertising, Loubradou (2004, 2010) developed the concept of “hypersexuality” (also used by the French self-regulatory system) to encompass: (1) full nudity and/or sexual organs shown in close-ups; (2) the promotion of products and services associated with sexual intercourse (e. g. , condoms, lubricants, escort services and sex toys); (3) “Sex and

Shockvertising” that combines sexual information with fear and shock – a strategy particularly used in public-service campaigns about AIDS and against child abuse, (4) showing or evoking sexual intercourse, homosexual relations, fellatio, sadomasochism and violence against women, and (5) sheer pornography as in an Internet ad exhibiting fellatio. Such ads generate four major types of objections (Boddewyn 1989, pp. 9-32; 1991, p. 26): sexism covers distinctions which diminish or demean one gender in comparison with the other – particularly, through the use of sex-role stereotypes; sexual objectification refers to using The expression “Porno-chic” was first used in 1973 by a New York Times journalist when the porn movie Deep Throat was released because people thought it was “chic” (that is, trendy) to watch it. McNair (2002, p. 2) defined “Porno-chic” as a wide process of cultural sexualization and pornographication of mainstream culture engaged “in an unprecedented flirtation with the codes and conventions of the pornographic, producing texts which constantly refer to, pastiche, parody and deconstruct the latter. ” As he put it: “Porno-chic is not porn, but the representation of porn in non-pornographic art and culture” (p. 1). 1 4 (mostly) women as decorative or attention-getting objects while sexuality relies on sensual, suggestive and erotic imagery, sound and wording, and is sometimes combined with the depiction of violence against women in ads showing them in harmful, subservient and helpless positions. French reactions to these excesses have been strong. French Responses

Incensed Pressure Groups Of the dozen French consumer associations legally recognized and financially subsidized by the government, most are linked to family organizations and a few to militant labor unions, and they are officially acknowledged as valid partners in discussions and negotiations with public and business bodies for the purpose of ensuring consumer protection broadly defined (Trumbull, 2006).

These organizations and, later on, environmental ones have been granted a formal “political voice” – a formal status which the French advertising industry has only received very recently (see below). Besides, feminist groups enraged by the treatment of women in advertising have been very influential in France although they have not so far received the same official recognition as consumer and environmental organizations because of their fragmented and sometimes aggressive nature.

Thus, vocal organizations with such evocative names as The Hunting Pack, Guardbitches and Advertising Wreckers managed in the 1980s to focus the “sex in advertising” issue around sexist discrimination, the objectification of women and the violence shown against them – the latter following studies revealing the extent of actual brutality against women (beatings, rapes, etc. ). Feminists stressed the disjunction between the extended roles and functions of women in modern society, compared to their narrow depiction in advertising (Rapport IFP 2001, pp. -6), and their campaigns have often been reported and discussed in the media which have spread and amplified these groups’ demands for more regulations. 5 Public controls Two principles compete as far as the French regulation of sex in advertising is concerned – namely, freedom of expression and protecting the dignity of human beings (Rapport IFM 2008, p. 19) – as expressed by the first article of the Freedom of Communication Law (No. 86-107 of 30 September 1986): Audio-visual communication is free.

The exercise of this freedom may be limited only to the extent required, on the one hand, for the respect of human dignity, the freedom and property of other people, the pluralistic nature of the expression of ideas and opinions and, on the other hand, for the safeguarding of law and order, for national-defense and public-service reasons, for technical reasons inherent to the means of communication as well as for the need to develop a national audio-visual production industry.

Besides, Article 3 of the Executive Decree of 27 March 1992 requires that commercials respect truth, decency and human dignity, and avoid discrimination and violence that incite dangerous behaviors. Article 227-24 of the French penal code prohibits the diffusion by any medium of messages of a violent or pornographic nature and likely to seriously harm human dignity when they can be seen by a minor.

The government’s Conseil Superieur de l’Audiovisuel (CSA) is charged with controlling advertising messages after their broadcasting in order to enhance the respect of human dignity, protect children and adolescents, and prohibit messages inciting hatred or violence on account of gender (Rapport IFM 2008, p. 19-20). Searching for New Values Particularly evident in these legal texts are the repeated references to “the dignity of human beings” – a principle already enunciated in the United Nations’ Universal Declaration of Human Rights (1948).

The highlighting of this concept reflects the search for new post-modern values which would justify representations of liberated women in advertisements without caricaturing or mocking their new freedoms, opportunities and responsibilities. In this respect, French feminist pressure groups provided a new discourse aimed at promoting the positive “image of 6 women” in advertising although, by excluding men, their initiative generated charges of reverse sexism!

However, French public opinion and policy were concurrently shifting toward banning all forms of discrimination based on gender, age, race, role and handicap so that a compromise could be achieved by adopting a new unisex principle that emphasized the respect of human dignity and thereby protected everyone against objectionable treatments in editorial materials, programs and advertising (Rapport IFP 2001), This new principle was incorporated in various French laws after 1986 and in industry guidelines, starting in 2001.

Court Decisions The Penal Code has not been used so far because of the high cost of criminal suits, the reluctance of judges to act as “censors of artistic creation” (Rapport IFM 2008, p. 20) and their fear of being ridiculed as reactionaries, and the difficulty for associations to sue in criminal courts (Teyssier 2004, p. 168). Thus, it was the Civil Code’s basic Article 1382, which obliges whoever injured others to compensate them for the legal damage he/she caused, which was used to condemn Benetton in 1996 for three 1991 billboards showing an elbow, a pubic area and a pair of buttocks stamped “H.

I. V. positive. ” A French governmental agency (AFLS) charged with informing the public about AIDS sued Benetton and was paid damages on the ground of this advertiser having undermined the human dignity of those affected by this disease by evoking the way meat is stamped and the tattooing of concentration-camp inmates during World War II, besides marginalizing a group of people by representing them as a marked population.

Private Controls The previously mentioned “Pornochic” transgressions prompted the French advertising selfregulatory body to improve its responses to growing criticisms of the use of sex in advertising. In particular, it triggered its October 2001 “Recommendation” (Image de la Personne Humaine) fostering the dignity of human beings in the representation of people in advertisements. This 7 voluntary guideline states that ads should not hurt their audiences’ feelings nor shock people by showing demeaning or alienating nudity, violence against people – especially women – or depicting people as objects.

Concerned about the impact of advertising on minors, an April 2005 Recommendation specified that Internet ads should not harm the “physical and moral integrity of its young public” by promoting illicit, aggressive, dangerous and antisocial behaviors, challenging the authority of parents and educators, representing children and adolescents in degrading manners, presenting them with indecent or violent images and speech that may shock them, and exploiting their inexperience or credulity.

In the same vein, a May 2007 Recommendation applying to erotic electronic services is aimed at promoting human dignity, the fair and true information of consumers and the protection of young audiences. The French Advertising Self-regulatory System The Professional Advertising Regulation Authority (Autorite de la Regulation Professionelle de la Publicite, ARPP) was created in June 2008 as a private association completely independent of the government. However, it reports to a French ministry about its pursuit of violations of taste and decency in advertising because its 2003 Commitment Chart (Charte d’Engagement) requires it to submit an annual report on “The Image of Human Beings in Advertising” to the Minister in charge of Parity and Professional Equity, and to distribute it to the public at large. 3 Self-regulatory controls are applied both a priori and a posteriori.

In the first place, French advertisers, agencies and media members of the ARPP may apply for non-binding copy advice by its legal experts at the pre-publication stage (15,196 projects were scrutinized in 2009). However, pre-clearance is mandatory before the broadcasting of all television commercials, and the ARPP can require modifications and even ban the proposed commercial if it is in breach of The ARPP is the successor of self-regulatory bodies dating of 1935, and it was named the Advertising Verification Bureau (Bureau de Verification de la Publicite, BVP) from 1953 to 2008. The French government itself commissions independent studies such as the “Report on the Image of Women in the Media” (Rapport IFM 2008) that was solicited by the State Secretary for Solidarity. 2 8 the law and its Recommendations. A posteriori, the ARPP monitors ads on a random basis in all media except television where the government’s Superior Audiovisual Council (CSA) prevails. ARPP penalties consist of asking “transgressors” to modify or remove their ads, requesting the media to stop diffusing an offending ad, and the possibility of taking violators to court.

Its decisions are widely publicized, and campaigns are regularly conducted to make the ARPP’s principles, recommendations and services better known as well as to incite advertising professionals to act responsibly. The previous BVP self-regulatory body handled complaints from consumers and competitors but the new ARPP structure is more comprehensive and includes external stakeholders.

It comprises: (1) an advisory Advertising Ethics Council (CEP) chaired by an independent academic to “anticipate” new societal developments; (2) an Advertising Parity Council (CPP) of which half of the members represent consumer and environmental associations, and which “concerts” with industry representatives about the need for new self-regulatory rules, and (3) an independent Advertising Deontology Jury (JDP) made up of persons who have no links with industry or consumer associations to solicit and “sanction” complaints from the public in order to complement the ARPP’s monitoring of ads.

Impressive Results The 2006 BVP report to the Minister in charge of parity between the sexes dealt only with posters and billboards because they are highly visible to all audiences – young and adult, pleased or offended. Of 4,288 “visuals,” only 8 (or 0. 19%) were considered to be violating its Recommendations. In all cases, the advertisers removed their ads, and the BVP credited the willingness of most outdoor advertisers to consult it before diffusing their ads for the low incidence of violations. Its report for 2007 (ARPP 2008) dealt with the Image of Human Beings in Advertising – with such subtitles as “Does advertising diffuse sexual stereotypes? ” “Are there too many images connoting sexuality? ” and “Where does Pornochic stand today? ” It covered outdoor advertising, newspapers and magazines – except those publications targeted at adult audiences (e. g. , girlie” magazines) – and it compared the sampled ads with its Recommendation on the representation of human beings in advertising, whose images should not offend human dignity, undermine decency, objectify/reify people, present denigrating stereotypes, induce ideas of submission, domination or dependence and/or present moral or physical violence. Out of 89,076 monitored ads, 96 (or 0. 10%) were found wanting – less than in 2003 (0. 15%) but more than in 2005 (0. 02%) – mainly in terms of offending human dignity (51 cases) and on account of the recrudescence of pornochic ads for luxury goods – particularly for clothing (e. . , Dolce & Gabbana). The results for 2008 were even better, with only 46 infractions and a decrease in pornochic ads (ARPP 2009) although these statistics did not cover the Internet which even very young audiences know how to maneuver in order to find and recirculate sexually-related materials. For the ARPP even 46 violations were too many and suggested greater professional vigilance and education so that its first campaign in 2008 was entitled Sexe because pressure should be maintained for even better results (e. g. , against the objectification of women).

Following the implementation of the 2008 Jury system (JDP) that solicits and handles complaints from the public, its first report for November 2008-December 2009 disclosed 24 valid ones of which 18 were related to the protection of human dignity and, in the majority of these cases, the complaint was upheld. Such public complaining and negative Jury decisions are 10 likely to persist because viral advertising on the Internet and word-of-mouth diffusion have created a huge recirculation of ads with sexual and violent content. 4 For that matter, the French self-regulatory system finds it sometimes problematic to handle new issues.

Thus, the BVP report for 2005 acknowledged its hesitation about what to decide regarding a billboard showing two homosexual men kissing (Rainbow Attitude Campaign). On the one hand, such a highly visible public display would shock the public so that maximum prudence should be exercised; on the other, it would be discriminatory to oppose a homosexual kiss when heterosexual ones are frequently shown. This advertisement was not found to be in violation of any public regulation or private rule – an example of how this self-regulatory body relies on both the law and its own Recommendations to control the use of sex in advertising.

The new 2008 ARPP system of “professional regulation” has been publicly recognized in several ways. Thus, a 5 March 2009 law, which transposed into French legislation the recent European Union directive on audiovisual services, did officially authorize the Superior Audiovisual Council (CSA) to delegate the preclearance of television commercials to the ARPP. Besides, the Paris Appeals Court stated on 26 October 2010 that “recommendations from the ARPP, even though they have no legal character, are professional practices that the judge must take into account if they do not contradict a legal or statutory measure. Moreover, professional regulation is now acknowledged and accepted by the French government which through several “Commitment Charters” (see above) has implicitly agreed not to regulate or ban certain practices but requires in exchange an effective system of adequate guidelines as well as an accountability evidenced by periodic and transparent monitorings and reports. These agreements amount to a system of “co-regulation” between public and private 4 Neither French nor U. S. egulators have found effective ways of controlling the diffusion of illegal or inappropriate Internet materials except through the obligation put on Internet Service Providers to remove illegal materials, on advertisers to warn about the sexual content of their messages, and on broadcasters to offer parents program-filtering devices. 11 actors who concert and collaborate in the public interest, and help generate a sense of responsibility among advertising professionals now convinced that their industry cannot claim its freedom of speech if it cannot prove its responsibility (Teyssier 2004, 2011).

A Brief Comparison with the U. S. System In the first place, the French have focused on protecting the dignity of all human beings and forbidding all types of discrimination in advertising while, in the United States, the problem has been framed in terms of protecting minors at the relatively modest price of adults losing only part of their free-speech right as far as the broadcasting media are concerned. 5 To be sure, other U. S. edia can still offer indecent and profane materials but they are supposed to reach better targeted audiences excluding minors. Second, compared to the French situation, politically weaker and less affluent U. S. consumer associations have exercised relatively little influence on the government in recent decades, the National Organization for Women has limited its sway to the “naming and shaming” of sexist advertisers, and even the very influential religious movement did not succeed in its campaigns to “cleanse American culture” (Lane 2006).

Third, in both countries, the government has been the main actor for the control of taste and decency in advertising, with self-regulation a strong second in France and a seemingly weaker one in the United States – largely because of First-Amendment and antitrust constraints (Rotfeld 2003). Yet, the lack of a French-like self-regulatory organization designed to study social trends, develop and publicize detailed guidelines, advise practitioners, solicit and handle complaints, and penalize wrongdoers has not precluded multiple U. S. nitiatives that add up to a control system Following various Supreme-Court decisions, obscenity and pornography are prohibited in all media while indecency and profanity are forbidden on radio and television except between 10:00 PM and 6:00 AM when children are unlikely to be in the audience. 5 12 that can respond fairly rapidly and effectively to complaints. All U. S. media have a pre-clearance system and most offensive ads are withdrawn by the advertiser or no longer diffused by a medium (Edelstein 2003) although some researchers challenge this positive evaluation (e. . , Rotfeld 1992). Besides, most sexual ads find their niches thanks to behavioral targeting and because the vast majority of sex-related ads match the programs where they are shown. Fourth, on account of various Supreme-Court decisions, U. S. government agencies such as the Federal Communications Commission and the Federal Trade Commission (FTC) have had to severely limit their control of indecent and profane materials in programs and advertisements.

Thus, the FTC has rejected any “immoral, unscrupulous or unethical test” because the latter has never been relied upon as an independent basis for proving unfairness. Besides, the “secondaryeffects rationale” used by some family associations, U. S. legislators and regulators to justify further restrictions on account of their presumed effects on children and society – e. g. , fostering immorality and feeding the prurient appetites of pedophiles and child molesters – has not been accepted by the U. S. Supreme Court (Beales 2003).

In contrast, such secondary effects have been used to justify all sorts of French proscriptions such as the ARPP Recommendation that Internet ads should not harm the “physical and moral integrity of its young public” (see above). Fifth, in both France and the United States, advertising practitioners believe that industry rules devised and applied by them are preferable because they know better what the problems and their realistic solutions are, and self-regulation generates greater moral adhesion than the law because industry guidelines are voluntarily developed and applied (Boddewyn 1992, pp. -8) even though it tends to improve only when the threat of regulation is real (Loubradou 2010). In this regard, there is increasing collaboration between governments and the advertising industry as evidenced by the French Commitment Charters while, in the United States, the Children’s Advertising Review Unit (CARU) of the Council of Better Business Bureaus has received the 3 blessing of the Federal Trade Commission which, under the “safe harbor” provision of the 1998 Child Online Privacy Protection Act (COPPA), can approve industry guidelines that help implement this law – a practice which also applies to the Entertainment Software Rating Board which assigns age and content ratings to computer- and video-game ads, and which has been favorably evaluated by the FTC (Bravin 2010, p. B1).

Finally, while governments, family and consumer associations in both countries are presently very concerned about personal-data privacy, behavioral targeting and the promotion of fatty, salty and sweet foods to children, “sex-in-advertising” remains an important issue because of the potential risk that sexualized violence in ads and the media may contribute to the desensitization of people and the socialization of aggressive behavior toward women (Capella et al. 2010, p. 45; Liptak 2010, p. A16).

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