Fashion is a dynamic industry. Its very essence necessitates change and, in turn, challenges to what has been accepted before. But now the questions and legal issues are piling up.

The last few weeks have seen Burberry, Gucci, and Katy Perry designs attract adverse media comment.

These follow Prada which last December put on to the market a key chain in the shape of a monkey, Dolce & Gabbana’s racist Chinese advertisements last November, and H&M’s ‘Coolest monkey in the jungle’ hoodie also last November.

The legal issues

Some years have now passed since John Galliano was found guilty by a Paris Court of making anti-Semitic and racist comments. Although it was a French court decision, it resulted in the employment contracts of some designers being looked at to see whether the contracts went far enough in protecting some brands.

Now how best to curb self-harm is a topical issue. Social media platforms have been put on notice about the need to address self-harm content in particular (and remove illegal content and prioritise the protection of users in general) or potentially face legislation. It is but a short step for this type of legislation to be extended to the fashion industry.

More immediately, the contracts made by brands when using fashion models will invariably contain “No-disparagement or embarrassment” provisions. However, the comments made by Liz Kennedy in her post on Instagram about the Burberry hoodie represent a rare example of where a model – and, as such, a brand influencer – has gone public with criticism of the brand for which the model is providing modelling services. As Liz Kennedy wrote:

“I had a brief conversation with someone but all that it entailed was ‘it’s fashion’. Nobody cares about what’s going on in your personal life, so just keep it to yourself.

“How could anyone overlook this and think that it would be okay to do this, especially in a line dedicated to young girls and impressionable youth? Not to mention the rising suicide rates worldwide.

“Let’s not forget about the horrifying history of lynching either. There are hundreds of ways to tie rope, and they chose to tie it like a noose ignoring the fact that it was hanging around a neck.”

These comments followed those by Edie Campbell who in 2017 in an open letter wrote:

“We operate within a culture that is too accepting of abuse.”

Whilst Ms Campbell’s and Ms Kennedy’s comments are well made, it is likely that fashion brands will quietly look at the contracts by which their models are engaged in order to check that the no-disparagement or embarrassment provisions extend to cover no criticism of the brands.

But given the plethora of brands which have faced adverse media comment in recent months, the questions being asked when designs spark public criticism are:

  1. is the brand seeking attention; or
  2. is the brand reluctant to stand up to the designer; or
  3. is the brand just another brand which has taken its eye off the ball?

For a brand which is a publicly traded company, it will be relatively easy for difficult questions to be asked of senior management at the next annual general meeting of shareholders.

For US brands in particular the questions can have serious consequences. In July 2017, Guess and Nike were the subject of competition law infringement investigations (see here and here). As a result of these investigations being announced, class actions were started in the US courts against the brands’ directors.

In any event, whether or not directors are the subject of claims, a downturn in sales as a result of public criticism could, in theory, impact on remuneration packages.

Overall, these incidents will encourage those who wish to hold the fashion industry to account to do so. Although, for example, the Modern Slavery Act has been in force since October 2015, they will point to examples of modern slavery which exist currently in clothes factories in the UK, to the #MeToo incidents involving the industry, and to situations such as un-thought through designs which suggest racism and abuse and ask whether there is a need for the fashion industry to change.