'Discriminatory and degrading': Czech Supreme Court upholds fine for gratuitous nudity in ad

Advertisements that use photographs of the naked female body to sell an unrelated product constitute discrimination, the Supreme Administrative Court (NSS) ruled, upholding a fine from the regional Trade Licensing Office of South Moravia.

The NSS found that using an image of a naked woman simply to draw attention to unrelated goods places objectifies women, which is contrary to good morals and discriminatory against the female sex, as well as degrading to human dignity.

The ruling related to the case of the Brno, South Moravia–based firm Index Čechy, which appealed against the decision by the South Moravian regional Trade Licensing Office. In 2016 the office imposed a CZK 50,000 fine for violating the advertising law. The case concerned a leaflet from the pawnshop Zastavárna Index featuring an almost naked female body not related to the advertised goods. Some 213,689 copies were distributed in Brno, Přerov, and Olomouc.

According to the Trade Licensing Office, one side of the leaflet has photos of pawnshop goods such as jewelry and electronics, and advertising messages with addresses of establishments and information about the quality of goods, prices, and the possibility of paying in installments. The other side of the leaflet there is a frontal photograph of an almost naked young woman posing only in panties, with her breasts fully exposed, leaning on the body of a historic car.

The fine from the Trade Licensing Office was later confirmed by the Ministry of Industry and Trade Ministry and then by the Regional Court. They found the naked body has no connection with the promoted activity and violates the Act on the Regulation of Advertising by endangering morality in a generally unacceptable manner; reducing human dignity; and containing elements of pornography, violence, or elements using the motive of fear.

“The authorities did not conclude about the pornographic nature of advertising. In this context, however, it can be noted that the matter under consideration can be seen in this regard as a borderline case, as its overall design clearly targets the sexual instinct of the recipients and corresponds more to erotic magazine content than any commonly seen advertising content distributed in public by other market participants, thus fulfilling at least some of the features of the test of the pornographic nature of the work,” the NSS judgment states.

The ruling does not mean all nudity in advertising is banned. The fact that the female nudity in the advertising leaflet is not at all related to the promoted goods was the key issue. Nudity as such does not matter in advertising and for example can be seen in the promotion of massages, underwear, or cosmetics. What matters is its relevance.

“From the point of view of assessing the inadmissible extent and form of sexist content, and thus contrary to good morals in general, there will be a difference between advertising promoting massage services, which depicts an almost naked woman lying on her stomach on a lounger, and advertising for a goods or services unrelated to the care of the human body, which will include explicit erotic to pornographic photographs of women,” the NSS states.

The pawnshop operator said that the law did not require advertising to be linked to promoted activities. They also claimed the advertisement did not contain or promote violent behavior and did not use verbal pornography.

“Nudity is quite common nowadays. It is popular with cosmetic products, perfumes, fragrances, massages, but also in the promotion of products with which it has no direct connection (for example, cars or mineral water). The main goal of every advertisement is to attract and reach potential customers. Advertising must therefore be impressive and memorable. For this purpose, it may use exaggeration or a visual work that attracts attention. The very depiction of a woman catching attention does not reduce human dignity,” Index Čechy claimed.

"The advertisement cannot be understood as reducing a woman to an object. … It does not contain any elements of pornography or discriminatory elements. Photographs of a girl in lingerie leaning on a car do not put her in an insignificant and unfavorable role; she does not express any subordination or unequal treatment. It is an author's work that the model has allowed [people] to acquire,” Index Čechy said in its arguments to the NSS.

The Zastavárna Index ads, and not only the one dealt with by the NSS, were also noted by the Sexist Piglet (Sexistické prasátečko) competition, which awarded the anti-prize for sexist ads from 2008 to 2018.

“They are based on the principle of ‘sex sells.’ They use naked bodies and sexual elements to promote the product, which have no connection with the product and only serve to attract attention,” the contest organizers stated. The awards are organized by the Brno-based non-governmental organization Nesehnutí, which promotes ethical advertising.