Photo Edit Law: Is It Time for an International Norm?
About the author: Devanshi Singh is a second year student at the National Law Institute University in Bhopal, India. Her areas of interest include international law, human rights, and ADR.
"Stortinget, Oslo, Norway" by Dmitry Valberg, available here.
On June 2, 2021, the supreme legislature of Norway amended the Marketing Control Act 2009, placing tighter restrictions on marketing involving photo editing. The amendment requires that any advertisements depicting retouched or manipulated body features be labeled with a standardized tag disclosing that the image was digitally altered. Once in effect, this rule will apply to social media influencers and any posts with paid promotions or advertisements across all websites. Research shows that digitally altered body features in advertising burden the public with body pressure and injurious perceptions. Norway’s expansive regulation is an improvement on other nations’ attempts at protecting consumers from these harms and should serve as a starting point for future legislation.
Media and Self-Perception
Society’s notions of beauty change swiftly, but the filters that society applies to fabricate beauty change even faster. In today’s digital era, where users constantly upload their activities on social media and receive an influx of others’ aesthetic notions and judgment, digitally altered features and photographs strike at the root of users’ insecurities. With significant leaps in technological advancements, it has become virtually impossible for users to readily distinguish between enhanced and unenhanced photographs. These modifications range from altering skin texture to changing body shape, culminating in a distorted image that prompts low self-esteem and unhealthy ideals. On the human front, digitally manipulated photographs have spurred intense social comparison and self-image issues, especially among younger people—the demographic most exposed to such content. These issues bleed into the commercial front; advertising touches countless lives, making the truth or lack thereof in marketing a pressing issue.
This issue has caught the attention of several nations primarily because deceptive advertising can perpetuate unhealthy beauty standards and morph a viewer’s body image. Today, the pervasive nature of social media makes this phenomenon a part of everyday life. Body image encompasses one’s attitude, perception of their physique, and beliefs about society’s perception of their physique. Negative body image is a pressing issue in many nations. A 2015 study in the US revealed that 50% of female adolescents were unhappy with their bodies, with a steep rise to 80% by adulthood. Following the introduction of television in Fiji, the issue of eating disorders more than doubled from 13% to 29%, with a marked increase in bulimia and “feeling fat.” Researchers also found that 95% of individuals with eating disorders or harmful weight control activities are between the ages of 12 and 25, the age group most exposed to social media.
People recognize edited photos only 60 to 65% of the time, inducing a rush to get cosmetic surgeries. Most of this stems from the pressure to conform to beauty standards, irreversibly impacting mental health. Therefore, those with great public influence, who have a say in what defines beauty, hold substantial responsibility.
Moratorium on Manipulated Media
Easy access to media and social platforms flooded with distorted photographs sparked debates on the blatant promotion of unhealthy body standards as early as 2006. The first country to take action against heavily manipulated media and unrealistic beauty standards was Israel, which implemented a law in 2012 requiring models to have a minimum BMI of 18.5 and relevant medical certificates, and requiring advertisers to provide clear markers in advertisements with digital alterations. In the US, Congress introduced the Truth in Advertising Act of 2016, which directs the Federal Trade Commission (FTC) to evaluate the degree to which digital alteration to individuals’ facial and bodily appearance in advertisements constitutes unfair or deceptive conduct. Labelling these practices as unfair or deceptive opens the door for monetary penalties. In 2017, France enacted the Photoshop Law, which states that commercial photographs containing models with digitally altered bodies must be accompanied by a “photographie retouchée” label. Norway’s amendment requires a similar disclosure but has a more expansive scope. These new regulations apply to social influencers, actors, and other celebrities, requiring them to disclose photographic manipulation in paid promotions and commercial ventures.
Right to Expression: Infringed?
Although regulating digital alteration in advertising offers substantial benefits, it may infringe on advertisers’ freedom of expression. International law generally provides a broad protection to the freedom of expression. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) recognizes freedom of expression as a fundamental human right “subject to certain restrictions” for the “respect of the rights or reputation of others, the protection of national security or of public order, or of public health or morals.” However, any limitations must be necessary, be proportionate, and relate directly to the purpose for which they have been prescribed.
Individual nations more directly address the balance between freedom of expression and advertising regulation. Article 100 of the Norwegian Constitution guarantees the right to freedom of expression, but Sections 20 and 21(b) of the Marketing Control Act prohibit any form of commercial practice likely to influence children by playing on social insecurity, bad conscience, or poor self-confidence. In the US, the First Amendment protects the right to expression and is inclusive of artistic liberty and social commentary. However, the FTC requires advertisements to be truthful, and applies a stricter standard when potential fraud and deception affect consumers’ health. In Argentina, Article 4 of Consumer Protection Law 24,240 states that the information provided to consumers must be clear, truthful, and detailed. In 2020, an Argentine senator introduced a bill titled “Legal Regime of Influencers” to expand the scope of Argentina’s digital advertising regulations to encompass social media influencers. In the UK, the Code of Broadcast Advertising (BCAP Code) governs digital commercial posts. In April 2011, the UK Advertising Standards Authority (ASA) applied the BCAP Code when it ruled on two L’Oreal advertisements. The ASA ruled that L’Oreal made misleading alterations by airbrushing images in its adverts to exaggerate the performance of its products.
Protecting public health and safety has long served as the rationale for advertising regulation. Multiple countries have blocked tobacco advertisements in television and print or mandated that they carry warnings to promote society’s interest in public health. In the private sector, advertisers have implemented “industry self-regulation,” which entails advertisers being mindful of potential consumer harm and refraining from propagating unhealthy practices through misleading terminology and visual aids. This same interest in protecting public health should be extended to advertising laws aimed at preventing the promotion of unhealthy weight, body, and skin standards. Balancing public health benefits with advertisers’ freedom of expression, mandatory labels for advertisements containing digitally altered photographs present the least intrusive solution.
The Path Ahead
As it stands, Norway’s new advertising regulations only address one branch of the tree of body dysmorphia and unhealthy standards. For any paid advertisement or collaboration, the promoter should be required to disclose specific modifications made to exaggerate the product’s features. The standardized tag is ambiguous and ineffective. A more effective policy could mitigate this ambiguity by requiring advertisers to add a link to their edited photograph that redirects the viewer to the original, unedited version. However, extending such a provision to apply to all edited photographs on the Internet, regardless of whether they are part of an advertisement, would violate users’ privacy rights and freedom of expression. Further, such an expansive restriction would push people to achieve unrealistic features through more detrimental means, causing more harm than the original issue created. Therefore it is necessary to limit the scope of this policy. Practicability is another potential issue with this proposal; each social media platform provider would have to train their algorithm to flag edited advertisements and attach the required label. However, the “false news” tags implemented by Instagram and Twitter appear to have bypassed this problem, suggesting that the necessary technology and infrastructure exist.
International law must recognize the impact that social media has on society. While a convention on this issue may be far off, nations should look to Norway’s new advertising regulations as a policy with a broad scope that covers the numerous media outlets of today’s society. But this is not enough. Labels should do more than notify consumers that the advertisement is edited. They should link consumers to the original unedited version to contrast the advertiser’s output with reality. In combination, these proposals provide a blueprint for policy that can create a safer and healthier environment for all.