France: "Photoshop decree" coming up soon

The French Health's Ministry has recently reformed national laws to back 'real body' campaigns because they're worth it! There will be no more 'photo-shopped' photographs of models going undisclosed in the French press, as of the 1st of October 2017. Any photograph edited to modify the figure of models (male or female) will have to bear the notice "Retouched Photograph" to comply with the law. Advertisers who fail to abide by this new legal obligation may face a €37,500 fine, which can be brought to 30% of the expenses incurred to produce the advert.

Background of the 'Photoshop' reform

Retouched photograph

This measure was first introduced in 2016 by the enactment of the Law No 2016-41 'on the modernisation of our health system' dated 26 January 2016 (see Article 19, here in French language). The initiative came from the Ministry of Health who wished to take concrete steps towards improving issues of "body image in our society by preventing the promotion of unattainable ideals of beauty and tackling anorexia among young adults, [...] models in particular" (according to their official press release reported here in French language). The Ministry reports that at least 600,000 teenagers and young adults suffer from eating disorders, including 40,000 from anorexia. These illnesses are the second most common cause of death for the age group 15-24, after road accidents. Ultimately, the government hopes that the negative message the notice conveys to consumers will deter advertisers from editing photographs in the first place.

It took over a year and a half for the measure to come into force as the 2016 reform could only be implemented by the introduction of a government decree. The decree, nicknamed the "photoshop decree" by the press, was finalised and published by the French government on 4 May 2017 (see here). The new dispositions were drafted in collaboration with the industry according to the Ministry, and can now be found under Articles L 2133-2, R 2133-4, R 2133-5 and R 2133-6 of the French Public Health Code. It is clear from these provisions are not limited to the fashion press, and will apply to all forms of commercial advertising campaigns that are communicated to the public online, in the press or on billboards. 

The main provisions (translated)

Article L 2133-2 provides that, "photographs used for commercial purposes of models, as defined by Article L 7123-2 of the Employment Law Code [here], whose physical appearance has been modified through the use of image processing software to slim down or thicken the model's silhouette must bear the notice: 'Retouched Photograph.'"

Article R 2133-5 further specifies that the, "notice must be affixed in the manner that is accessible, easily readable and clearly distinct from the advertising or promotional message." It goes on to stress that such presentation will be governed by  "rules and conventions of good practice defined by the industry", and for this purpose the text refers directly to the French advertising regulation authority known as 'Autorité de Régulation Professionnelle de la Publicité'.  

It is clear from Article R 2133-6 that the obligation to disclose the retouching of images rests on advertisers rather than photographers or publishers. Indeed, the provision reads "[t]he advertiser shall ensure that the legal obligations found under Articles L 2333-2, R  2133-4 and R 2133-5 of the Code are respected. To this end, they must ascertain that the photographs used for commercial purposes they purchase, directly or via other third parties, were retouched using image processing software with a view to slim down or thicken the model's silhouette". From the wording of the provision, it appears that only editing concerning the body shape of models will be subject to public disclosure but other common aspects of photo-shopping such as skin tone, hair colour or wrinkles may continue to go incognito. 

Going forward
Whilst the Public Health Code gives some pointers as to how the new regime is to be applied in practice, a number of key questions are yet to find answers. First, it is still unclear from the wording of the new provisions what will be deemed an "accessible" and "easily readable" notice, complying with principles of good practice in the field of advertising. Should we expect warning messages as prominent as the ones displayed on cigarette packs? It will be for advertisers and possibly French administrative courts to define this as the reform enters into force in October.

Retouched Photo-giraff
[French humor 
does not always translate...]

Similarly, as the rule applies to online advertising campaigns, one may also wonder whether this will force advertisers to apply the notice :

•  all online publications accessible from France

or 

• on all online publications targeting French consumers

or 

• on all online publications in French language regardless of national borders

or 

• on all online publications (to be on the safe side)

This technical detail of the reform can have significant implication of the geographical reach of the new laws.

Finally, Article L 2333-2 mentions a possible increment of the €37,500 fine to 30% of the expenses incurred to produce the advert, without explaining which costs the text refers to. Are we talking 30% of the production costs of the photograph itself or 30% of the production costs for the entire campaign including publication expenses and so forth. This is yet another technical detail which could significantly affect the impact of this new measure as infringement could be followed by a hefty price tag if the courts decided to opt for the second alternative.

On the whole, the effectiveness of the reform will largely depend on the diligence with which the government will monitor and sanction infringing advertising campaigns. We shall wait for October 1st to come, and see what comes of it...