Cheap and Illegal

In February 2016, the residents of Brno, Prerov, and Olomouc received an advertising flier in their mailboxes. To reach as many people as possible, the Breva chain of pawnshops and jewelry stores distributed a total of 213,689 fliers in these Moravian cities promoting its range of products and services. The advertisement included a photo of a young woman, absolutely naked except for a pair of panties, leaning on the hood of a vintage automobile.

In and of itself, this was nothing special. It was quite common for similar material to fall out of people’s mailboxes, although many people did make a fuss about them. This time, however, one recipient was spurred to action – who exactly it was and what bothered them is not being communicated by the authorities – and a complaint was filed about the advertisement. It was first heard by the South Moravian region trade licensing authority, which reviews such complaints and assesses advertising ethics, and the firm was fined 50,000 crowns (2,000 euros) for discriminating against women and degrading their dignity. When the company appealed, the complaint against the ad and the fine were upheld by both the Czech Industry and Trade Ministry and the Brno Regional Court.

The firm then turned to the Supreme Administrative Court (NSS), which, while it disagreed in part with some conclusions of the Brno court, in late March upheld the decisions of the authorities and the lower courts. The judgment did not exactly spark mass attention (with the exception of a group of outraged Twitter users), but it is a breakthrough nonetheless. Sexist advertisements in the Czech Republic have been discussed with growing intensity in recent years and they have all but disappeared from the mainstream media, but the authorities have been inconsistent about approaching them and until now no such case has ever made it to such a high level of the court system. After years of academic debates and annual surveys about who in society deserves to be considered a “sexist pig,” the argument is acquiring new seriousness here that the body of a woman is not a commodity, not something that, in a civilized society, can be used to sell anything from tiles to tires, and that depicting women in a degrading way can have a negative impact on all of society.

Common Logic

Breva, a company based in Slovakia, runs a big chain of jewelry stores and pawnshops. Currently it has 91 outlets in 49 towns in Moravia (called Index there) as well as Slovakia, some of which are open nonstop. It has long exploited images of scantily-clad women in its ads. A year after the distribution of fliers in Moravia, the firm was fined again: 80,000 crowns, to this day the highest fine ever levied against a sexist advertisement (in this case the woman, dressed only in panties, appeared in the display window of a Brno pawnshop). The company's website still uses photos of young women in underwear. We do not know why the company is still doing this despite having repeatedly incurred problems on that score. Its representatives have not responded to our requests for comment.

In court, Breva appealed the fine with the argument that their advertisement did not exceed the bounds of common logic: If the basic characteristic of an advertisement is that it attracts attention, then generally there are few things that draw more attention than a (half-) naked woman. Nudity is, moreover, common in the public space, not just in artworks, but especially in advertising, in for example, cosmetics ads. The female model knew how her photograph would be used and agreed to such use. The firm admitted that, as the NSS judgment put it, “the illustration of nudity might seem cheap,” but argued that it was not illegal. On the contrary, what is against the law is to limit the constitutionally protected freedom of speech, which also covers advertisements and promotional activity.

The company also objects that it is unclear why a photograph of a naked woman on the hood of a car bolsters stereotypical ideas about women, as it argued to the Brno Regional Court, also claiming not to comprehend how such an image might support the unequal position of women in society. Does that mean all advertisements featuring naked women are automatically sexist?

The NSS judges rejected those arguments one by one. The basic function of an advertisement may indeed be to attract attention, but at the same time, the laws regulating advertising must be obeyed and, among other matters, require that an advertisement not violate good morals. While “good morals” is a rather vague term, the law clarifies that it does not correspond to good morals for advertisements to discriminate against somebody on the basis of race, sex, or nationality, or to degrade human dignity. Freedom of speech may be constitutionally protected, but advertising enjoys less stringent protection than does other kinds of speech.

Although the NSS did not agree with some of the details in the lower court's conclusions, it did basically agree with the judgment. A half-naked or nude body of a woman is something that we commonly see in advertising and in public spaces, but the context matters. If, for example, what is being promoted are massages, cosmetics, underwear, or swimsuits, then there is a clear logic to the use of women in a state of undress. In other words, in an ad for swimsuits that features a model wearing a swimsuit, it is beyond any doubt that there is an association between the advertisement itself and the goods being offered. In an advertisement for a pawnshop, there is no such association. If such context is lacking, then the half-naked woman is, in the words of the court, “reduced to a mere object,” used as a commodity, an item, and dehumanized.

In this specific example, moreover, the court said the photo was not at all decent; on the contrary, “its overall design clearly targets the sexual instinct of the recipients and corresponds more to the content of an erotic magazine than to any commonly seen advertising content distributed in the public space.”

Such treatment of a woman’s body, according to the court, does not just have an impact on the specific woman posing for the photo, but on society as a whole. “An advertising message does not just serve a promotional function, it also serves a cultural one that can influence the worldviews of the recipients of the advertising message, as well as their views of interpersonal relations or of the positions of women and men in society,” the judgment states.

Raised Eyebrows

“As far as sexist advertisements go, this is a breakthrough,” commented Petra Havlikova of the NGO Nesehnuti (“Unbending”), the group that satirized sexism with its annual “Sexist Piggy” survey, which ran from 2008 to 2018. They succeeded in significantly transforming how sexist advertising is viewed by society. In her introduction to Sexisticka reklama [Sexist Advertising], a book published last year by Nesehnuti, former Czech ombudswoman Anna Sabatova wrote, “In a visual way, they managed to push these questions into the public space, to increase sensitivity to sexist elements in advertising, and to once again cultivate a common public space.” It is exactly because of this evident shift in the social debate that Nesehnuti stopped running the survey, which drew attention to dozens of cases of sexist advertisements, because “it had served its purpose.”

“The shift for the better is unequivocal. In 2008 most people didn’t even know what the concept of sexism was,” as Havlikova said. “Now we’re seeing an emphasis not just on no longer encountering sexism in advertising, but generally in society. If we look just at the topic of sexist advertising, there is already much less of it now than there once was.”

Experts in advertising and marketing law confirm this shift, as do ad industry professionals. They have not objected to the NSS judgment, but they point out that the advertising and business mainstream is somewhere completely different today. “Such advertisements have prompted raised eyebrows among professionals – it would never occur to a regular firm to base advertising on sexist elements,” said Petra Dolejsova, an attorney specializing in marketing law. “The ads worthy of winning the Sexist Piggy award are perceived as bizarre by experts.” According to Pavel Brabec, president of the Association of Czech Advertising Agencies and Marketing Communications, the “surprise”  is rather that such advertising is still being produced today. “The days when such advertisements were common are gone,” he said, adding that, as a member of the arbitration committee of the Advertising Council, such cases come to that body’s attention very rarely.

In research done for the Sexist Advertising book, lawyer Veronika Bazalova  found that the Advertising Council's arbitration committee reviewed just eight cases of alleged sexist advertising between 2016 and 2018 and that regional trade licensing authorities reviewed 13 cases. The question is whether more complaints of this kind are not filed because people do not know it is possible to do so or because such advertising does not bother them. In Slovakia, the Advertising Council processes approximately 70 complaints annually, according to Bazalova, almost double the number of total complaints received by its Czech counterpart.

At the same time, opinion polls tend to undermine the notion of a Czech local tolerance for sexist advertising. In a survey that Nesehnuti commissioned in 2018 from the Center for Public Opinion Research, most respondents said they disliked sexist advertisements, and they especially rejected depictions of violence against women (91 percent), ridiculing people for their appearance (75 percent), and sexist stereotypes about men and women (54 percent). When respondents were asked why they disliked sexist advertising, the second most frequent answer was that it contributes to inequality between men and women in society.

All forms of sexist advertising bother women more than they bother men, and for some specific examples the difference is massive: While slightly more than half of the men surveyed said they liked an advertisement for loans featuring an absolutely naked woman lying on her belly, asking an ambiguously-phrased question involving the offer not just of a loan, but of sex, just 14 percent of the women surveyed said they liked the ad.

Like a Table

In general, the advertising business has become more cultivated in recent years, but that does not mean sexist ads have disappeared altogether. Review of another such dispute is currently on the docket at the NSS:  A producer of motorcycle clothing, Kalup Machines, is objecting to a 20,000 crown fine levied against them in 2016 by Prague’s trade licensing body. While according to the court, the Breva ad had the effect of reducing a woman to a “mere object,” Kalup Machines literally turned women into objects in an online advertising campaign. One photograph shows a naked female model kneeling on all fours wearing a motorcycle helmet, with a glass table top resting on her back. The woman’s body is being used as a conference table at which two fully dressed men are sitting. In another photo a female model is used as a floor lamp, while in another she is turned into a traffic sign.

Pavel Hluchy, the creative director of the firm, did not want to comment on the legal side of the matter and claimed the company is in what he called a stage of “clinical death.” Nevertheless, he did defend their ads. “I have always condemned nudity for nudity’s sake and unappealing sexual innuendo leading to the degrading of either sex designed for shock value,” he wrote in an email. “However, using nudity in a concept that has been thought through is something else, where there is added value if it overlaps with an art form.”

“A judgment, in and of itself, does not necessarily have to influence these specific firms in their decision-making about the kind of advertisements they want to produce,” Havlikova said. “However, the message does trickle down through different levels of the court system and will influence how regulatory authorities make their decisions in the future.”

Sexist ads can still be seen in the public space, however, and there is still no agreement on what that basically means and how to respond to it. Bazalova illustrates this conflict with reference to an ad for grinding and polishing wheels, where the products are presented by a female model in a silver swimsuit perched on a motorcycle. Two different authorities have responded in different ways to this ad: Prague city bureaucrats did not feel it violated the ethics code because, in their view, an association was made between the product being advertised and the woman (the model was holding a grinding wheel in her hands, so apparently it is something she uses). Their colleagues in South Moravia, however, saw no direct association between the female model and what was being sold and found the advertisement illegal.

With the clear instruction that has now been handed down by the Supreme Administrative Court, such discrepancies should no longer happen. Even those last fighters still advocating for the use of female nudity in advertising will most probably reconsider such strategies in the future.

Translated by Gwendolyn Albert. Vychází ve spolupráci s TransitionsOnline