A. Advertising, ways of life and cultural
diversity
1. Impact on cultural diversity
44. As
early as 1985, a UNESCO report indicated that by restructuring consumption
habits, the advertising industry imposed exogenous, partly alien ways of life
on people of developing countries.[1] In
2009, another UNESCO report affirmed that there could be no doubt that the
development of transnational markets, linked to the rise of consumerism
promoted by skilful advertising, was having a significant impact on local
cultures, which were finding it difficult to compete in an increasingly global
marketplace.[2]
45. Advertising
and marketing strategies have become more sophisticated and brands have
developed their own identities. Using a combination of meanings, symbols and
values and having unmatched outreach worldwide, they provide codified messages
to people and have succeeded in becoming some of the reference points for
people’s perceptions about themselves, others and the world in general.
46. Advertising
campaigns usually rely on a few themes: happiness, youth, success, status,
luxury, fashion and beauty, and mostly suggest that solutions to human problems
are to be found in individual consumption and status symbols. Theories of
consumer culture and cultivation reveal how the media and advertising can “cultivate”
values such as materialism.[3]
They stress that individual consumers do not make rational choices in the
context of “free” markets. Instead, they operate within a sociocultural,
economic and political framework that shapes and limits how they think, feel
and act in the contemporary marketplace.[4]
Advertising and marketing practices increasingly help to shape this framework.
47. The
misrepresentation, underrepresentation and stereotyping in advertising of
certain social classes and groups is also of concern. Furthermore, global
advertising campaigns promoting one single advertising message for all
countries, according to observers, have an even more detrimental impact on
cultural diversity, including linguistic diversity.[5]
2. Promotion of detrimental behaviours and attitudes
48. Many
products, behaviours and attitudes promoted by commercial advertising are
harmful to people’s health and social relationships, as well as to the
environment. Examples most frequently mentioned include tobacco smoking, which
advertising associates with the positive values of freedom and independence;
the stereotyping of women; and the promotion of food with a high content of
fat, sugar or salt. These are not the only examples, and some argue that,
overall, it is the omnipresent and aggressive promotion of lifestyles based on
intense consumption that is detrimental to human societies and the environment.
49. Despite
some progress, advertising still commonly portrays women as housewives, mothers
or sex symbols, with sometimes detrimental impacts on the health of young
girls, such as anorexia.[6]
Some States have introduced regulations on stereotypes and body image in
advertising, for example requiring disclosing when images have been digitally
modified (see the responses of Argentina, Denmark and Mexico).
50. Food
advertising and promotion have contributed to shifting dietary patterns towards
those closely linked with non-communicable diseases. By promoting mainly
manufactured products with a high content of fat, sugar or salt, food and
beverage companies contribute to altering previous eating and cooking practices
that often were healthier and more ecologically sound. Both the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health (A/HRC/26/31,
paras. 22-25) and the Special Rapporteur on the right to food recently
expressed their concerns on these matters.[7]
Some measures have been adopted in particular within the framework of the World
Health Organization (WHO).[8]
For example, some States have prohibited companies from advertising junk food
to children below a certain age, while others have prohibited the inclusion of
toys with children’s food.
51. Safeguards
need to be made more effective. For example, health messages at the bottom of
food advertisements do not attract sufficient attention, as shown by tracking
the eyes of people watching television. These would be more effective if their
content, form and layout changed during the advertising, if they appeared on
the screen on their own and were read out by different voices. More generally,
informing people is not enough to bring about behavioural change.
52. In
general, online regulations have not kept pace with offline regulations,
enabling companies to effectively dodge the law by relocating their advertising
to digital spaces.
53. Regulations
have lagged behind the ingenuity of advertisers. For example, the banning of
traditional tobacco advertising is insufficient. A study measuring brain
reactions to a range of stimulants (cigarette packets, advertising posters,
promotional items and brand exposure through sponsorship) show that sponsorship
images, such as using a colour code for items even without explicitly
mentioning the brand, stimulate areas of the brain associated with the desire
to smoke. These results invite considerations of ways to regulate all forms of
indirect advertising and sponsorship.
3. Use of cultural expressions, particularly those of indigenous
peoples, for commercial purposes
54. The
constant search for novelty and culturally resonant meanings in advertising has
led to the appropriation of signs and images wherever they are found, including
in indigenous cultures, with usage frequently distorting the original
symbology. Indigenous groups have resisted companies seeking to incorporate
indigenous imagery into their products, services, advertising or marketing,[9] with some success.
55. National
laws should be in conformity with international standards, including those
contained in the United Nations Declaration on the Rights of Indigenous
Peoples, in particular article 31, in which the right of indigenous peoples to
maintain, control, protect and develop their cultural heritage, traditional
knowledge and traditional cultural expressions is recognized. Good practices
include specific regulation to protect indigenous communities (see the response
of Colombia).
B. Advertising,
children and education
1. Children
56. The
Convention on the Rights of the Child protects the rights of children to
freedom of expression (article 13), freedom of thought, conscience and religion
(article 14), play (article 31), education (article 29) and health, including
adequate nutrition (articles 24 and 27). Pursuant to article 17, States
recognize the important function mass media perform and are committed to
ensuring that children have access to information and material from a diversity
of national and international sources, especially those aimed at promoting
their social, spiritual and moral
well-being and physical and mental health. States also are committed to encouraging the development of appropriate guidelines for the protection of children from information and materials injurious to their well-being, bearing in mind the provisions of articles 13 and 18. Of note, article 18 (1) provides that States shall ensure the recognition of the principle that parents have the primary responsibility for the upbringing and development of their children. In accordance with article 3 (1), in all actions concerning children, the best interests of the child shall be a primary consideration.
well-being and physical and mental health. States also are committed to encouraging the development of appropriate guidelines for the protection of children from information and materials injurious to their well-being, bearing in mind the provisions of articles 13 and 18. Of note, article 18 (1) provides that States shall ensure the recognition of the principle that parents have the primary responsibility for the upbringing and development of their children. In accordance with article 3 (1), in all actions concerning children, the best interests of the child shall be a primary consideration.
57. In
its general comment 17 on the right to leisure (CRC/C/GC/17), the Committee on the
Rights of the Child recognized that the commercialization of children’s play
environment influences how children engage in recreation, cultural and artistic
activities. The Committee also expressed concern that:
many children and
their families are exposed to increasing levels of unregulated
commercialization and marketing by toy and game manufacturers. Parents are
pressured to purchase a growing number of products which may be harmful to
their children’s development or are antithetical to creative play …. Global
marketing can also serve to weaken children’s participation in the traditional
cultural and artistic life of their community.[10]
Many studies commissioned by governments
and civil society groups support such assessments and underline that commercial
advertising heightens children’s insecurities, accentuates inequalities and
distorts their gender socializations.[11]
58. Most
countries grant children special protection in relation to commercial advertising.
Some prohibit television advertising at certain hours or in connection with
children’s programmes. One principal element in legislation and the ICC code is
that marketing directed at children should be clearly distinguishable from
other content. A few countries prohibit all forms of advertising to children,
regardless of the medium or means used.[12]
59. The
definition of a child for the purposes of commercial advertising in state
legislation and self-regulatory codes varies from persons under the age of 12
to those under 18. Sometimes the age is not specified. The 12 years of age
criterion is based on academic assessments indicating that by the age of 12
children have developed their behaviour as consumers, effectively recognize
advertising and can critically assess advertisements. Academic and civil
society organizations have asked for a ban of all advertisement to
primary-school children.[13]
60. Whether
children of a certain age have developed adequate “cognitive defences” to
implicitly processed commercial messages is contested, however.[14] Given the emotive nature of most television advertising, the manner
in which most digital advertising is processed and the development of new forms
of advertising, such as embedded, viral and native advertising, assumptions
about cognitive defence need thorough investigation. To the extent that any
cognitive defence exists, advertising seeks to circumvent it.
61. Special
attention is required in sectors escaping regulations on advertising to
children, such as in the recruitment of children as brand ambassadors on social
media[15] and
advertising on mobile devices and in video games. Children are particularly vulnerable
to such practices.[16]
62. In
this context, initiatives to increase media literacy are praiseworthy. Their
effectiveness, however, is largely untested.
2. Advertising in schools
63. Most
international human rights standards and national laws on education place a
legal obligation on children to attend school. Schools therefore constitute a
distinct cultural space, deserving special protection from commercial
influence.
64. The
growing presence of advertising in schools is documented.[17] Numerous examples exist of company logos appearing on school
materials, including textbooks and educational material, as well as on school
premises; company logos as the central focus of sponsored lessons; television
in schools providing “educational content” with advertising; shows by
characters representing brands; vending machines or coffee bars occupying
school space to sell and promote particular brands and/or products; contests
organized by banks; sponsorship of school buses, sports fields or school names;
branded road safety material; incentive programmes with supermarkets offering
vouchers for school laptops or cameras; school fund-raising strategies
encouraging families to enter into commercial relations with companies that
donate to schools; exclusive agreements granting a company exclusive rights to
provide a service and/or product; the recruitment of schoolchildren to serve as
brand ambassadors and so on. The Special Rapporteur considers school premises
as encompassing not only the school itself, including cafeterias, libraries,
playgrounds and sports facilities, but also their immediate vicinity, as well
as school buses.
65. Schoolchildren
offer a captive and credulous audience. Companies see school-based marketing
and advertising as perfectly suited to “branding” children at an early age.
Marketing and advertising programmes are normalized and given legitimacy when
embedded in the school context; the strategies deployed lead children to
interact and engage with particular brands during school time.30
Furthermore, the sponsoring of school material and educational content reduces
the freedom educational institutions have for developing the most appropriate
and highest-quality curriculum for their students.
66. Advertising
in schools remains unregulated in many countries (see the responses of Chile,
Guatemala, Paraguay, Qatar, Togo, Uganda, and the Defensor del Pueblo, Plurinational
State of Bolivia). Some States (Greece, France, Serbia and Slovakia) prohibit
or limit advertising in public schools on the basis of the principles of
neutrality, purpose of the institution and child protection (see also the
response of the National Human Rights Committee of Qatar). Others, including
Algeria, prohibit all advertising for commercial purposes, but the dividing
line between commercial and non-commercial messaging remains unclear. Some
States, including El Salvador, have intervened to stop situations that have
gone beyond what seems reasonable; in others, such as Finland, parents have the
right to decide the kind of marketing permissible in schools, with a strict
prohibition against disseminating pupils’ contacts for marketing purposes. In
other situations, sponsoring is allowed, but the material cannot contain
product marketing. WHO, for its part, recommends that children not be exposed
to any form of marketing of foods high in saturated fats, trans-fatty acids,
free sugars or salt, in particular when they are in schools and on playgrounds.[18]
67. Even
when restrictions on advertising are in place, difficulties or loopholes in
implementation arise from general legal provisions that require localized
implementation by municipalities or school boards that are sometimes unaware of
the regulations. Difficulties in interpretation of the law may also emerge (see
the response of Slovakia).
68. For
States, local authorities and parents, opposing advertising and marketing in
schools can be difficult. In some contexts, this may impede the ability to
secure sufficient funds to construct and/or maintain school infrastructure,
provide pupils with books, lunches or teachers, organize outdoors activities
and games and so on. Economic recession and cuts in budgets increase the
pressure on authorities, who are then more likely to resort to negotiating
agreements with companies. There are also numerous cases, however, of schools
authorizing advertising and marketing practices on their premises without deriving
significant or, indeed, any, financial gain as a result.
69. The
Special Rapporteur stresses that private sponsorship can indeed help in
securing funds needed for the effective functioning of schools. This should
not, however, result in advertising and marketing materials or activities
entering school premises or being targeted at children. The Special Rapporteur
is of the view that companies may still advertise the fact that they sponsor
schools, but should do so outside schools. The only exception to this may be
when specific materials, such as computers or musical instruments bearing logos
or brands of the companies producing them, are donated to schools (known as
manufacturers’ or distributors’ primary consumer product package labels).
70. Taking
into consideration article 13 of the International Covenant on Economic, Social
and Cultural Rights, which refers to the minimum educational standards as may
be laid down or approved by the State, the Special Rapporteur considers that
the prohibition of advertising should be applied in both public and private
schools.
3. Advertising in universities
71. Commercial
advertising and marketing in universities is similar to such activities in
schools but raise different issues, as young adults are deemed to have
sufficient levels of awareness and critical thinking. Most country responses
indicated that, as independent bodies, universities may regulate advertising
and marketing according to internal codes (see the responses of Bolivia
(Plurinational State of) Brazil, Finland, France, Guatemala, Honduras,
Nicaragua, Portugal, Serbia, Togo and Uganda). Universities very rarely seem to
prohibit some forms of advertising.
72. Universities
are spaces where students should learn to develop a spirit of enquiry and free
thinking. Hence, authorities should ensure that advertising and marketing on
university campuses remain clearly distinguishable and within reasonable
limits, and that the best interests of students and the academic community
remain paramount.
73. Literature
indicates that university-business agreements may include conditionality, such
as “non-disparagement clauses”, prohibiting members of the university community
from criticizing the company involved.[19]
Such restrictions on the right to the freedom of expression of students and
academics should not be tolerated.
74. The
promotion of specific products and services through the sponsorship of academic
research is a growing trend. It can take the form of sponsorship of departments
and professorships and commissioning of academic studies that are tantamount to
market research. The Special Rapporteur considers that some criteria need to be
established to prevent conflicts of interest, and to guarantee academic freedom
and the rights of students to information and an education.
75. Of
specific concern is the sponsoring of university textbooks and attempts to
influence their content, for example in medical sciences. Such sponsorship
should be made fully transparent so that students may consider their textbooks
with a critical eye and seek access to other sources of information.
C. Advertising
and public space
76. Public
spaces are spheres for deliberation, cultural exchange, social cohesiveness and
diversity. The growing commercialization and privatization of public spaces
pose significant challenges to the realization of the right to participate in
cultural life and to the protection of public spaces reflecting cultural
diversity. People engaging in creative activities encounter manifold
difficulties in using public space.
1. Outdoor advertising
77. National
laws regarding the conservation of historic sites or monuments or the
protection of the environment or landscape, for example, provide guidelines
regarding the size and location of advertisements, their aesthetics and
obligations to be followed (see the responses of France, Guatemala and Rwanda).
Such laws can also regulate not-for-profit advertisement and murals on private
property. Although some laws provide for fines in case of illegal
advertisements and specify procedures for their removal (see the response of
the National Commission of Uganda), civil society groups report that these are
often not effective (see the responses of Résistance à l’agression publicitaire
and Paysages de France).
78. Responses
to the questionnaire show that in most countries, outdoor advertising falls
under the jurisdiction of local governments or municipal departments. Some
municipalities regulate the permissible size, number and zones for outdoor
advertisement and determine areas for public interest information and political
advertising. Agreements may be concluded with companies to provide bus shelters
and public toilets, for example, in exchange for the right to place
advertisements on them (see the response of Paysages de France).
79. The
uncontrolled expansion of advertisements has prompted some national and local
authorities to take action (see the responses of Colombia and El Salvador). In
2006, for example, the adoption by the city of Sao Paulo, Brazil, of a “clean
city” law resulted in the removal of 15,000 advertisements before the city
adopted new regulations setting out clear rules.
80. In
various countries, civil society organizations denounce excessive advertising
and illegal billboards. Written requests asking authorities to act against the
latter have been largely ignored, allowing billboards to remain in place for
years before tribunals reach a decision (see the response of Paysages de
France). Instead, in some cases, those denouncing unlawful billboards have found
themselves facing defamation lawsuits by advertising companies.[20] Some groups also engage in direct actions to remove unlawful
billboards or simply to protest against the proliferation of billboards.
Alternatively, some groups have transformed, mocked and distorted the
advertising messages disseminated on billboards, in direct response to their
messages and to contest the values and aspirations they promote.
81. The
imbalance in power in these situations is of concern. The few companies holding
the worldwide market for outdoor advertising, including in bus or train
stations and airports, can end up deciding what is displayed in the public space.[21]
82. The
question is one of proportion: the number of outdoor advertisements, their
size, locations and the technologies used, such as digital billboards and
screens, render advertisements omnipresent and inescapable. Billboards obstruct
people’s engagement with their environment, including parks, built heritage or
the landscape, and, by exhorting people to become mere consumers, adversely
affect their sense of citizenship. The Special Rapporteur notes with concern
the numerous cases of people having the windows of their houses covered by
large billboards, despite their opposition, and of trees cut down to ensure greater
visibility of billboards.
83. Billboards
and other outdoor advertising devices affect far more than the private property
on which they are installed; indeed, the commercial value of billboards is
determined by the number of viewers passing by. Observers argue that, in
reality, companies purchase public space rather than merely hire private
property (e.g., a wall on a private building).
84. Another
growing trend is to sell companies the right to select names for prominent
buildings, streets and sports halls. The impact this has on the symbolic
landscape of cities and people’s perceptions should be considered, and public
discussion and the participation of local residents in decision-making ensured.
Some States, including El Salvador, have adopted laws to impede this trend.
2. Artistic creation and the public space
85. Corporations,
artists claim, try to co-opt public space used by graffiti artists, for example,
for commercial messaging.[22]
Indeed, advertising companies have demanded that murals be regulated by the
same codes applicable to advertisement billboards.
86. While
acknowledging that States have different approaches to graffiti, the Special
Rapporteur is concerned by the sharp disparity between the paucity of action
and enabling mechanisms for removing illegal billboards compared with the far
greater resources devoted to removing illegal graffiti, with sanctions in the
form of fines and even jail sentences.
D. Art
and cultural programming, artistic expression and creativity
1. Advertising on television
87. Television
remains a key medium for advertisement, and advertisements are the principal
source of income for television channels. To attract advertisers, channels need
to attract the target audience of companies. Studies reveal the impact of
advertising on programme content, for instance channels not offering content to
groups with low purchasing power and the managing director of a television
channel averring that the aim was to sell “available parts of human brains” to
advertisers.[23]
It is further argued that the increased representation of violence in
programmes reinforces the efficiency of advertising: individuals subjected to
emotional stress retain messages delivered to them better. In addition, a
number of biochemical reactions make people more inclined to consume food with a
high fat and sugar content.[24]
88. Embedded
advertising on television is also of concern.[25] Article 13 (2) of the WHO Framework Convention on Tobacco Control
requires parties to implement a comprehensive ban on tobacco advertising,
promotion and sponsorship or to apply restrictions that are as comprehensive as
possible. The guidelines for implementing this provision recognize that the
depiction of tobacco in films is a form of promotion. Prohibitive or restrictive
measures need not interfere with legitimate types of expression, however, such
as journalistic, artistic or academic expression or legitimate social or
political commentary. Nonetheless, States should take steps to prevent the use
of journalistic, artistic or academic expression or social or political
commentary for the promotion of tobacco use or tobacco products.
89. Of
note, European Union directive 2010/13 considers as prohibited surreptitious
communication:
the representation
in words or pictures of goods, services, the name, the trade mark or the
activities of a producer of goods or a provider of services in programmes when
such representation is intended by the media service provider to serve as
advertising and might mislead the public as to its nature. Such representation
shall, in particular, be considered as intentional if it is done in return for
payment or for similar consideration.
It further states that sponsoring
programmes or audiovisual media services shall not affect the editorial independence
of the media service provider; they shall not directly encourage the purchase
or rental of goods; and viewers shall be informed of the sponsorship agreement.
Product placement is restricted. The European Convention on Transfrontier
Television of 1989 also requires the regulation of advertising.
2. Commercial sponsorship of the arts
90. As
noted in the Special Rapporteur’s report on artistic freedom, cuts in public
spending have enhanced the importance of private sponsorship of the arts (A/HRC/23/34, para. 70). While tax
incentives may be a welcome means of encouraging private sponsorship of the
arts and stimulating cultural production, the balance should always be in
favour of artistic freedom and creativity. It is important to safeguard against
sponsors reorienting activities to be more attractive to the market, and States
should ensure that corporate sponsorship does not result in the arts and
artists becoming mere advertisers of corporate interests. The desire of
corporations to protect a specific logo or brand or to silence criticism of
their product may also result in art restrictions. In most countries, private
sponsorship of the arts appears to be an unregulated area. The concern is the
long-term impact on art and cultural programming and the freedom of expression
of artists, including towards corporations.
91. A
recent global trend in art museums is “brand exhibitions”, which are not only
sponsored by, but devoted to, luxury brands, including the representation of
their logos or values and the sale of their products in museum stores.[26] This raises a number of questions and concerns regarding the
distinction to be made between support and direct advertising, between
advertising and other content and in terms of the balance needed between
private benefit and public interest, including the right of people to enjoy the
arts in spaces sheltered from undue commercial influence.[27]
92. Art
institutions use internal measures to review the benefits and risks of
collaboration with for-profit companies. Important issues that need to be
addressed include the potential impact of collaboration on the good name and/or
reputation of the institution; whether the corporation’s values, products and
services are consistent with those of the institution and its community; and
respect for the institution’s mission and programme.[28]
93. To
guard against the potential negative consequences of corporate sponsorship,
organizations have developed toolkits to assist artists.[29] Some countries have conducted surveys on cultural events,
organizations and activities to identify and analyse trends in public and
private funding. Such initiatives should be encouraged.
3. Sponsorship and conservation of cultural heritage
94. The
presence of a private sponsor of cultural heritage made obvious through
oversized logos or advertisements may provoke strong reactions among people who
feel that their rights to access cultural heritage or to participate in
cultural life have been curtailed. Concerns have also been expressed about the
granting of exclusive rights to a sponsor for projects to renovate historical
sites.
95. Many
countries have laws restricting advertising on and around historical sites or
monuments. Recently, however, temporary advertising on scaffolding during
renovation has become a practice in several countries. A good practice is using
the image of the building in its original or post-renovation state with the
name of the sponsor appearing in small print rather than displays directly
promoting the sponsor.
[11] National Education
Policy Center, “Effectively embedded: schools and the machinery of modern
marketing”, thirteenth annual report on schoolhouse commercializing trends:
2009-2010, University of Colorado at Boulder; United Kingdom Department for
Chilodren, Schools and Families and Department for Culture, Media and Sport, “The
impact of the commercial world on children’s wellbeing: report of an
independent assessment”, 2009; M. Barbovschi, L. Green and S. Vandoninck (eds.)
“Innovative approaches for investigating how children understand risk in new
media: dealing with methodological and ethical challenges”, EU Kids Online,
London School of Economics and Political Science, 2013.
