Advertisement distributed by Swedish ISP held to be sexually discriminatory

Readers who have been following the EU copyright reform saga may be familiar with the argument that the new directive, if adopted, would make it impossible to share GIFs and memes in Europe due to the requirements under Article 13. 

But can a meme be pulled also on other grounds than what, quite scarily, copyright has been accused – rightly so or not – of? 

This is indeed what happened in what frankly looks like a bizarre decision of the Board of the Swedish Advertising Ombudsman (the Board) a few weeks ago.

According to the Board’s decision, the well-known Distracted Boyfriend meme (a stock image come to fame) used for advertisement would be sexually discriminatory and should be consequently banned.        

In 2018 the Swedish internet service provider Bahnhof [which readers might recall has also been involved in several cases relating to blocking injunctions] turned to social media in a witty move to advertise available positions within the company. The advertisement which was published on Facebook and Instagram comprised of two posts with the same content. One of the posts comprised of the following text: “Looking for a new job? Right now we are looking for sellers, an operating engineer, and a distinguished web designer”.

The picture in the post depicts a man and a woman holding hands along a street while walking away from the camera. Another woman wearing a red dress is depicted in the foreground. The woman in red appears to pass the camera while the picture is taken. The man’s head is turned towards the woman in red, his expression is one of ‘interest’.  The woman holding his hand appears upset while the man gazes at the woman in red. The word “you” is written on the man’s shirt, “your current workplace” on the woman’s left arm, and “Bahnhof” on the woman in red.  The picture is reproduced below:

The claims

According to several claims advanced by consumers, the advertisement objectifies women and is thus discriminatory in its nature. In particular, it portrays women as interchangeable items and emphasizes their aesthetic appearance.

Several reports also indicate that the image itself is a well-known meme on the internet which is intended to be of a humorous nature but this would not justify the Bahnof using it as part of its marketing strategy.

Other reports also echo that the advertisement depicts stereotypical gender roles of men and women which is inferior to both genders. For example, even though a man has a partner, he can/should look for other women if they are more aesthetically appealing. It gives the impression that men can change partners in the same way that they change jobs. One upset reporter even stated that “Bahnhof could possibly not be interested of female applicants with the present advertisement”.

Bahnof’s response

In response to the negative attention, Bahnof attempted to publicly apologize on Facebook. It stated that it was attempting to use the Distracted Boyfriend meme to visualize the application process in a humouristic fashion. It depicts – albeit in a sarcastic style – jealousy and longing – for something better than what the employee currently has. The spirit is that the advertiser is an attractive workplace that can lure you into breaking your relationship with the current employer.

The situation is exactly the same regardless of the colours, shapes, and characteristics of the individual. Bahnhof does not read gender roles or gender characteristics of anyone. What matters is the competence that the individual possesses.

Furthermore, although memes can be can be – and sometimes are used – in a sexist fashion, the people portrayed in memes should not be more than representative of what they actually are. It is therefore the form and the situation that make up the meme.

The decision

The Board set off by stating that Article 4 in the ICC Advertising and Marketing Communications Code (ICC Marketing and Advertising code) expressly prohibits discriminatory advertisements in relation to gender.

The following criteria is used in order to establish whether advertisements can be considered discriminatory on a gender basis if they are:

1. Objectifying advertisements: advertisements that portray individuals as sexual objects, for example through clothes, posing and environment, in a way that can be considered derogatory. The term “derogatory” may depend on whether the individual has a connection the service marketed and where the advertisement has been marketed;

2. Conventional advertisements: advertisements portraying individuals in stereotypical gender roles that describe or convey a derogatory image of women or men; and  

3. Advertisements that are gender-discriminatory and derogatory in any other way.

The Board then went on to state that humour, exaggeration and irony are often used in advertising and can mitigate gender-discriminatory impressions, while at the same time there is a risk that what is humourous or made fun of, is reinforced.

In light of the above and claims submitted by both the public and Bahnof, the Board found reason to assume that the targeted group of individuals would be familiar with the meme used in accordance with its own interpretation of the roles of the figures in the meme.

Nonetheless, the Board considered that the woman in red – by being in focus of the image and through the man’s appreciative reaction – is portrayed as a sexual object.  The object of the advertisement per se is to recruit salesmen, operating engineers, and web designers. The portrayal of the woman in red as a sexual object is therefore unrelated to the advertisement. The Board found this impression to be reinforced by the fact that women are assigned as representatives of workplaces, while men – being recipients of the advertisements –are portrayed as individuals.

Furthermore, the Board also considered the way men were portrayed in the meme. From the way in which the man has his head turned towards the woman in red, while walking together with his girlfriend, the image conveys a stereotypical portrayal of men and thus also derogatory in this regard.

In light of the above, the Board found that the advertisement was in breach of Article 4 of the ICC Marketing and Advertising code.

Beware memes!