"Homage to Pirelli calendar" is gender discriminatory

On November 8, 2017, not only the meeting of the Second Chamber of the Swiss Fairness Commission was on the agenda. The combined assembly of the three chambers also met in the morning; the plenum is responsible in particular for the assessment of appeals. On this occasion, the SLK bid farewell to Guido Sutter as a technical expert. The Head of SECO's Legal Department has provided competent advice and active support to the self-regulatory organization of the communications industry for almost twenty years with his great expertise and broad experience.

At its meeting on November 8, 2017, the Second Board had to decide on eight appeals. Of these, it rejected five, upheld two and only partially upheld another; appeals have since been filed against three of these decisions. The complaint against an advertisement for DAB+ stating that reception was "interference-free and of high quality" was only partially upheld. It was rejected because the sound of the new standard is indeed better than before for the average addressee. The statement, on the other hand, was no louder because DABPlus is still anything but interference-free at the present time in tunnels, peripheral areas and under difficult topographical conditions.

Homage to the Pirelli calendar?

In two cases, a women's organization has called the advertising of a company in the forestry industry gender discriminatory. The SLK followed this reasoning only in the case of the subject, which shows a scantily clad woman sitting on a gasoline barrel with her legs spread (see picture above). Even if the helmet, gloves and hearing protection refer to the forestry industry, such advertising is sexist. The woman staged in this way served only as an eye-catcher and had no relation to the advertised product. The fact that the respondent wanted to see in it an homage to the well-known Pirelli calendar did not change anything.

However, no objections were raised to an advertisement showing a man in work clothes on one side and a woman in a business suit leaning confidently against the wall with a laptop under her arm on the other. The claim to this was: "Forestry solutions from timber marking in the forest to post-calculation in the office". In the opinion of the Fairness Commission, this representation does not violate the dignity of women, nor does it call into question the equality of the sexes.

Appeals only in case of arbitrariness

In addition to the Second Chamber, the combined assembly of the three chambers of the Fairness Commission also met on November 8. Twice a year, the plenum elects new chamber members, discusses possible new principles, deals with fundamental questions and, above all, judges appeals. However, these are only granted in the case of arbitrariness. This means that the chamber in question must have made an untenable decision, blatantly violated a norm or a legal principle, or violated the concept of justice.

Nor can an appeal be used to reassess a decision or to provide information that was forgotten in the appeal proceedings. The SLK procedure, which is simplified in comparison to civil court proceedings, does not provide for an in-depth clarification of the facts of the case, nor does it require multiple exchanges of documents and an extensive evidentiary procedure. Based on this arbitrary review, the plenum dismissed all five appeals on November 8, 2017.

A fundamental question

As mentioned above, the plenum has to deal with fundamental issues. As in the case of a YouTube video of an online retailer that looked very similar to the commercial of a well-known beer brewer. Both were about a barbecue party on a lakeshore. While in the original everything went over the natural stage in high spirits, the party got out of hand in the respondent's version. Even the - non-alcoholic - beer didn't taste good: "Uh, what's this puddle?". The brewer considered the video to be unnecessarily offensive as well as unnecessarily leering and filed a complaint.

To put it in a nutshell: the plenum dismissed the complaint, although an imitation was affirmed. According to the plenum, the TV spot of the respondent is not necessarily associated with the spot of the complainant by the average addressees. Rather, it can also be understood as a generic parody of a typical beer advertisement. The advertising spot of the respondent thus lacked the necessary awareness. However, the fact that the complaint was rejected must by no means be understood as a carte blanche for imitative advertising.

Note: A detailed account of the case can be found in Werbewoche 1/2018.

About the Fairness Commission

Any person is authorized and legitimized to complain to the Swiss Fairness Commission about commercial communications that they believe are unfair. The SLK has been the self-control body of the advertising industry since 1966. In addition to the industry associations, it includes the Federal Office of Public Health, the State Secretariat for Economic Affairs SECO, the Office for Equality of the City of Zurich, the lottery and betting commission Comlot, the Institute for Intellectual Property and consumer associations. The Swiss Commission for Fair Trading has been chaired by National Councilor Christine Bulliard-Marbach since 2012.