Last year, France enacted a new legislation (Law no. 2016-41 on the modernisation of our health system dated January 26, 2017, which came into force on January 1st, 2017) with the aim to encourage more socially responsible ads and avoid the use of artificially thin images of fashion models, whose view may induce eating disorders amongst teenage.
Article L. 2133-2 of the French Public Health Code (FPHC), as introduced by the new law, provides that “Photographs for commercial purposes of models whose physical appearance has been altered by an image processing software in order to slim or to thicken the model’s figure shall be accompanied by the words “photographie retouchée”.
Moreover, article R. 2133-6 of the FPHC burdens the advertiser with a best-efforts obligation to verify that the commercial photographs that he buys directly or through different service providers have not been modified by image processing softwares.
Only the modifications of silhouettes that affect the model’s weight seem to be concerned by the new rule.
The modalities of implementation of this new obligation have been specified by a Decree (Decree n°2017-738 of 4 May 2017 relating to photographs for commercial use of models whose appearance has been modified), that came into force on October 1st, 2017.
The Decree states that the mention “photographie retouchée” must be affixed in: “an accessible, easily legible and clearly differentiated way from the advertising or promotional message. The presentation of messages shall respect the rules and use of best practices as defined by the profession, notably by the Professional Advertising Regulatory Authority (ARPP)”.
Until now, the ARPP has only provided unofficial guidance on how and where the mention “photographie retouchée” should be affixed (at the “Réunion ARPP d’échanges et de lecture commune consacrée au Décret n° 2017-738 du 4 mai 2017” as of July 4, 2017) (link).
Without any clear guideline from the Regulator, nor settled market practices or court’s ruling, there is a high degree of uncertainty among the stakeholders over the correct way to comply with the law.
It follows from the wording of the law that the mention “photographie retouchée” should be (i) of sufficient size, (ii) of a colour contrasting with those used in the background and (iii) not drowned among other mentions.
Neither the Law nor the Decree lay down clear provisions on where exactly the mention must be displayed (on the photograph itself, near the product description or as a disclaimer on the bottom of the brand’s website). Given this lack of specifications, positioning the disclaimer on the photograph itself appears to be the safest solution to comply with the Regulation, while the only use of a general notice at the bottom of the webpage might be enough only if a clear reference to the relevant photos concerned is provided thanks to an asterisk or another pictogram (except maybe in the case that all photographs are retouched).
This new obligation applies to “photographs for commercial purposes” published through all types of media (cf. article R. 2133-4 of the FPHC which provides for a non-exhaustive list of media, including press or online publications, e-commerce marketplaces, social networks’ posts, printed ads, newsletter or correspondence), except for videos and television ads.
The Regulation does not specify the territorial scope of the rule. A cautious approach would be to assume that it applies to photographs that are accessible by French consumers. Indeed, it is settled case-law that national law applies if a violation is committed through a website available in the country of reference or otherwise addressing its audience, being irrelevant the place where the servers are located or where the company is registered (CA Paris, 19 March 2010, PIBD n°920 III p.391; TGI Paris, 6 December 2012, n°10/12560; Cour de cassation, Chambre commerciale, 17 January 2012, n°10-27311).
The Decree provides that responsible for complying with the duty of disclosure is the “advertiser” (“Annonceur”). Failure to comply with the Regulation can be sanctioned by a fine up to € 37,500, the amount of which may be increased up to 30% of the advertising expenses. No definition of “advertising expenses” is provided nor the Regulation specifies if this fine applies to each non-compliant photograph. However, it may be expected that judges shall apply the sanction once only for the entire offense and not for each challenged photograph. In this way, it would appear reasonable that the “30 percent of the cost of creating the advertisement” shall be calculated on all the expenses incurred in connection with the contentious advertising campaign.
Similar provisions exist from 2012 in Israel (Weight Limitation in the Modelling Industry Act, colloquially referred to as the “Model Act” or the “Photoshop™ Act”). Such law also prohibits advertisements which display fashion models (both male and female) who are underweight in accordance with measuring formulas (namely, the Body Mass Index) provided by the law.
In Italy, although we don’t have a rule specifically requiring this kind of disclosure when a model’s general appearance is altered, Article 10 of the Italian Self-regulatory Code of Marketing Communication (link) provides that marketing communication should respect human dignity in every form and expression. Moreover, Article 12 establishes that marketing communication should not contain representations that may lead consumers to be less cautious than usual or less watchful and responsible towards their own health and safety. These provisions remind to be careful when using the body image which is likely to cause pressure to conform to an unrealistic or unhealthy body shape, or which are likely to create body confidence issues, particularly among young people (cf. decisions 121/2007 or 6/2002).
Jacopo Ciani
iplens.org 