Definition of Sex Based Discriminatory Advertising in the Law of Ukraine "On Advertising"

On 8 January 2022, amendments to the Law of Ukraine “On Advertising”, which introduce definitions of ‘discriminatory advertising’ and separate ‘discriminatory advertising on the basis of sex’, will come into force.

The concept of ‘discrimination’ is not new in the legislation of Ukraine. However, as of now the Law of Ukraine "On Advertising" contains only a general provision prohibiting discriminatory statements and claims in advertising and does not provide a definition for ‘discriminatory advertising’.

Now, the Law of Ukraine "On Advertising" is amended to include definitions of ‘discriminatory advertising’ and ‘discriminatory advertising on the basis of sex’.

Namely, ‘the discriminatory advertising on the basis of sex’ is an advertising that:

- contains statements about and / or images demonstrating intellectual, physical, social or other superiority of one sex over another and / or a stereotypical role of men and women, which promotes humiliating and degrading treatment;

- degrades human dignity on the basis of sex;

- demonstrates gender-based violence;

- uses images of the human body (body parts) exclusively as a sexual object to attract the consumer's attention and / or references (words, sounds, images) to sexual relations that do not relate to the advertised product or method of consumption.’

It is important to note that this is not just about discrimination against women, as ‘sex’ covers both female and male; there are a few advertising campaigns in Ukraine where the image of a man in advertising was found discriminatory. In fact, Ukrainian law says nothing about gender related issues.

Introducing a new definition is also important for resolving disputes between advertisers and the Ukrainian advertising regulator addressing fines for the production / distribution of the sex-based discriminatory advertising. Currently, when considering a dispute in a court, the Ukrainian advertising regulator refers to the standard "Non-discriminatory advertising on the grounds of sex" - a soft law developed in 2011 by marketing NGOs in Ukraine. As its provisions are not binding, the advertiser is not obliged to comply with it and is obliged to operate only with the provisions of the Law of Ukraine “On Advertising”, which does not contain sufficient definitions. To solve the problem, the courts were forced to look for other definitions they could refer to. In particular, there is an example of a court referring to the UN Convention on the Elimination of All Forms of Discrimination against Women, which contains a definition of ‘discrimination against women’ (however, 'sex' covers both male and female, and this convention is about slightly different things).

Thus, the above-mentioned changes to the Ukrainian advertising legislation should be welcomed, as they will introduce transparent requirements to be used for non-discriminatory advertising on the basis of sex.