SLK: Baby's right of personality violated

The objectionable advertising subject for a men's fashion label shows a man perfectly dressed for business. He carries a naked male baby in his arms, whose primary sexual characteristic is recognizable and who pees on him in a high arc. The complainant considered this depiction to be degrading and pornographic. The Second Chamber of the SLK approved the complaint, however not on the basis of principle 3.11 "Sex-discriminatory advertising" of the SLK, but on the grounds of violation of personality rights. It follows from the general right of personality according to Art. 28 para. 1 of the Civil Code that it is inadmissible to depict a person in commercial communication without his or her express consent (right to one's own image, see also principle 3.2 item 1 of the SLK).

In addition, the consolidated code of advertising practice of the International Chamber of Commerce (ICC) states that commercial communication must respect human dignity. If a person is not capable of judgment, such as the baby in the offending advertisement, then the necessary consent can also be given by his or her legal representatives, for example the parents. This, however, only insofar as the core of the right of personality is preserved. The image of the baby in question while urinating is not one of these exceptions. Rather, it affects the baby's privacy and dignity and thus the unjustifiable core of the right of personality. Thus, his parents were not entitled to consent to the image on behalf of their child.

Discriminatory or humorous?

The second case shows how fluid the perception of gender-discriminatory portrayals still is. A radio commercial for a consumer credit company says: "Imagine your girlfriend has finally passed her driving test on the third try. Now it's high time for a new car ... with electronic parking aids all around." According to the complainant, these statements violated the dignity of women and were therefore discriminatory. The respondent, on the other hand, pleaded for a humorous approach. It was a game with well-known prejudices: "Women can't drive" and "Men love cars more than their wives". The Second Board rejected the appeal because the commercial told an individual story and was not a stereotypical portrayal of women as a whole. In addition, the humorous portrayal was clearly evident.