RETOUCHED FASHION PHOTOS | WHAT ARE THE RULES?

The Global Advertising Lawyers Alliance (GALA) reported recently that France has enacted new legislation requiring that all altered or retouched commercial photographs of models, whose body appearance has been refined or thickened, be labelled as a retouched photograph.  The legislation comes into effect on 1 October 2017, requiring the labels ‘photographie retouchée’ or ‘photo retouchée’. This follows French legislation that requires that all models provide a medical certificate confirming their general physical well-being and the fact they are not excessively underweight.

The legislation, which applies to photographs used in France for commercial purposes, carries fines of up to €37,500 per violation for offending advertisers, and is similar to a 2012 law in Israel that governs the use of models in the advertising industry. Titled, “Weight Limitation in the Modelling Industry Act – 2012,” the law is also colloquially referred to as the “Model Act” or the “Photoshop™ Act.”

According to the Israeli version, if an advertiser (television, print or electronic) alters the appearance of the model by digital means, the advertisement must contain a notice which clarifies that the model’s body features were graphically altered. The law also prohibits advertisements which display models (both male and female) who are underweight in accordance to measuring formulas prescribed in the law (namely, the Body Mass Index (BMI).

Of the French legislation, Michel Bejot, a Partner at Bernard-Hertz-Bejot said, “The legislation, which was passed to help fight eating disorders, will have significant impact on fashion, cosmetics, and other advertisers who retouch photographs.” The new legislation does not apply to images used for editorial purposes.

The ‘retouched photograph’ disclosure must be presented in an accessible and visible way and must be clearly distinguished from the other parts of the advertising.

Insofar as South Africa is concerned, no such law yet exists, but Kelly Thompson, a partner at Adams & Adams, the South African member of GALA, says that the Advertising Standards Authority (as well as legislation such as the Consumer Protection Act) specifically prohibits false and misleading advertisements. “The question will be what can be considered false and misleading. The ASA Code says that advertisements should not contain any statement or visual presentation which directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer. While some degree of digital enhancement for advertising purposes must surely be allowed, if the image appearing in the advertisement actually misleads the consumer, that may create difficulties”, says Thompson. Of course, the French and Israeli laws deal with the wider social issues of eating disorders and model welfare, and are not limited to misleading imagery only.

As a matter of interest, the ASA previously held that an advertisement for a yoghurt product showing a model choosing a fat free product upon seeing a thinner model choosing the product, was contrary to the ASA Code in that it reinforced the artificial desire for women to want to look like the second, skinnier model. The ASA found the advertisement to be irresponsible and ordered that it be withdrawn. Interestingly, the advertisement had been presented in several countries around the world, without complaint, whereas eight complaints were received here.

In responding to news of the French legislation, Jeffrey A. Greenbaum, GALA’s Chairman and Managing Partner of Frankfurt Kurnit Klein & Selz in New York said, “Advertisers should start making plans now to include appropriate disclosures, as needed. Advertisers should also consider whether this will have an impact on a model’s willingness to participate in a campaign where retouching is planned.”

KELLY THOMPSON

Partner
Trade Mark Attorney

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