From the beginning of 2017, French law has required the inclusion of the words “Photographie retouchée” on any photos used in a commercial context (such as advertising) in which the body shape or silhouette of a model has been adjusted using image processing software.
The aim of this rule, which has had very little press attention in the UK, is to encourage more socially responsible ads, avoiding the use of artificially thin images of models. A recent French Decree, in force from 1st October 2017, now gives more details of how advertisers are to comply with this requirement.
The new rules apply in all visual marketing contexts including print, online, email and other types of targeted or public communications. The required wording must be used whether the adjustment was to slim or to thicken the body shape of the model, but it seems that mere adjustments to a photograph’s lighting would not need the wording to be added. It is the responsibility of the advertiser to find out (from third party suppliers of photos where relevant) whether the images that it is using have been subject to any adjustments of the model’s body shape.
Where required, the words “Photographie retouchée” must be set out accessibly - in a way that is both easily legible and differentiated from the promotional message of the ad – and in accordance with relevant professional best practice. The penalty for failing to include the magic words is a fine of up to 37,500 Euros (or, at the discretion of the judge, a higher fine up to 30% of the budget for the making of the ad in question).
The relevant French law does not state whether it applies also to global ad campaigns run from outside France but visible within France. According to French legal experts the safest course is to assume that the law will apply in such circumstances, particularly if there is evidence that the French market has been targeted by the campaign (e.g. use of French language, French contact details or Euro pricing).
In the UK, although we don’t have a rule specifically requiring this kind of disclosure when a model’s general appearance is altered, advertisers are reminded to be careful when using post-production techniques which could exaggerate or generally mislead consumers about the effects of a product (such as makeup). In such cases, even a disclaimer won’t always be an effective way of reducing the risk of an upheld ASA ruling.
On the topic of body image, it’s also worth remembering that ads which appear in space controlled by TfL, such as the London Underground, are held to a higher standard. Such ads must comply with TfL’s Advertising Policy, which means TfL may refuse to carry ads which are 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.