Recently an increasing number of brands on the Polish market have been raising important social issues in their communication with customers through advertising. Breastfeeding in public, same-sex relationships or non-discrimination are important topics in the public debate. However, when shown in video or BTL communication, they may evoke extremely different feelings and discussions.
Depending on the market for which the advertisement is intended, the cultural and social context in a given country must be taken into account. Content that works well in one country may be controversial in another because it offends religious feelings or is considered immoral. In Poland, potential consequences include fines imposed by the Office for Competition and Consumer Protection or withdrawal of advertising on virtue of a decision issued by the chairman of the Polish National Broadcasting Council.
Current social issues in advertising
An example of such a controversial campaign is the latest Christmas commercial released by the Polish largest jewelry manufacturer, which shows, among others, a woman breast-feeding in a museum, a woman who suffered with breast amputation looking at herself in the mirror, a grandmother bragging to her children about her new tattoo during a Christmas visit, or two women kissing, presumably in a relationship. The story is accompanied by a musical background - one of the most famous opera arias. The message conveyed by the ad is that despite differences existing among the women portrayed, all the characters feel and look like (beautiful) women.
Another example of an ad engaged in social issues is a campaign released by an international chain of beauty stores, also present in Poland, which introduced an internship program for LGBTQ+ persons. Young LGBTQ+ persons were to work in selected perfumeries as part of paid internship. This chain conveys the message that it supports LGBTQ+ environments every day (by using the words "stands"). The advertising is accompanied by graphics in the form of a heart with rainbow colors. Similarly, the "love is love" campaign organized by the same entity, through a dedicated rainbow-colored cosmetics collection, given support to trans people and LGBTQ organizations.
The content or the message?
There are more campaigns of the same kind in Poland. Often such advertisement does not contain explicitly "inappropriate" content, but only carries a certain message, which in specific environment may be considered controversial. Important, contemporary issues in the public space often provoke public debate, and by raising them in ads, companies demonstrate their support for certain initiatives. However, depending on a social group, even a prima facie neutral image may be considered inappropriate or offensive because of, for example, the context or the message it carries.
Potential violations
In Poland, provisions of advertising law are spread in a number of acts, which regulations may apply depending on the target audience, subject matter or object of the advertisement. Separate acts are applicable to advertising of products for children, cosmetics, food or financial services.
According to the Polish Broadcasting Act, advertising messages may not hurt religious or political beliefs . There is a famous case when an advertisement presenting a novel was blocked because it showed a religious symbol stained with blood, which could offend the religious feelings of Catholics. Cases when advertising is contrary to good manners, on the other hand, are regulated in the Polish Act on Combatting Unfair Competition. The Act lists various behaviors classified by the legislator as torts of unfair advertising. On virtue of the Act examples of ads mentioned above, may be classified as advertising that is contrary to good manners or that offends human dignity.
Burden of proof
When evaluating various representations and warranties made by producers of goods in ads, including on product packaging, informing about their support for certain initiatives, environments or organizations, the key question is whether the representations are true or likely to mislead consumers.
Polish courts rule that in order to consider the ad to be an act of unfair competition it is not necessary to prove that the advertising influenced consumers' decision to conclude a contract (e.g. to buy a product). A mistake induced by an advertisement should be significant, i.e. have at least the potential to influence consumers' decisions to choose the advertised product. If a consumer decides to buy a particular product mainly because a company claims to support initiatives with which the consumer identifies himself/herself, such advertising may be considered misleading if in fact the declared support is negligible.
The Polish Supreme Court confirmed that the burden of proving the truth of the information contained in an advertisement rests on the person (entity) that is accused of committing an act of unfair competition related to misleading consumers. This means that the brand will have to prove that the message contained in the advertisement has accurate justification.
A broad concept of advertising
In case when a producer is accused of committing an act of unfair competition in advertising, it may try to claim that, for example, a disputed message was in fact not an advertisement. This argument is unlikely to be accepted by the Polish court. The courts assume that advertising includes all forms of communication, including those that, while not containing evaluative or encouraging to buy elements, may nevertheless be accepted by their recipients as an inducement to purchase. The basic element determining that communication is an advertising message is not only a more or less explicit encouragement to buy the product, but also the actual intention of the entity releasing the message and the reception of the message by those to whom it is addressed.
What determines that a given message (advertisement) may be found as contrary to good manners or as violating religious feelings? It depends - all content must be analyzed, taking into account local social, cultural, and religious context as well as national laws.
