The Slovak Trade Inspection fined an advertiser who owned a nightclub for a breach of advertising rules when presenting a naked body. Under Slovak law, the presentation of a naked body is only allowed if it is not presented in a derogatory manner. At the same time, the advertising must comply with the principles of good morals.
What was the fine for?
The advertiser used an outdoor ad consisting of three billboards placed in Bratislava, showing a naked woman's body contrary to the principle of good morals. The ad portrayed a half-naked model lying down in a very provocative position. Private parts of the model were (not entirely) covered with a black star, an anchor (note: anchor forms the logo of the advertiser's business), and the words "masá~e/massages", as well as the phone number of the nightclub. The visual also contained descriptions of the activities provided by the club (Striptease, Go-go dancing, Topless show, Lesbian show), information about the free entry (Free ENTRY), opening hours (18:00-05:00), and contact details of the nightclub.
Was the fine legit?
The advertiser opposed the fine and appealed the decision; however, the appeal was rejected. Subsequently, the advertiser initiated administrative court proceedings. The Regional Court dismissed the action, and the Supreme Administrative Court of the Slovak Republic confirmed the decision of the Regional Court. In total, the whole proceeding lasted approximately eight years.
According to the press release of the Supreme Administrative Court (the complete decision is not publicly accessible yet), the final arguments of the advertiser were (among others):
- The decision-making practice of the Slovak Trade Inspection is inconsistent, as in more severe cases of showing a naked body in advertising, the inspection decided on non-breach of advertising rules;
- The fine is disproportionately high;
- The term "good morals" is too vague.
How did the Supreme Administrative Court assess the arguments?
The Supreme Court found the decision-making practice of the Slovak Trade Inspection to be consistent, referencing two previous decisions dealing with similar breaches of the advertising code, where the fines imposed were three times higher than in the current case. At the same time, it assessed the argument regarding the disproportionately high fine as insufficiently supported and not justified.
In our opinion, the most important aspect (and if not the most important, at least important enough to move us towards drafting this article) was the "final line" of the Supreme Administrative Court regarding good morals, where they stated:
"(...) perceptions of good morals and the permissible level of nudity are evolving and advertising must therefore always be considered in the context of the relevant time period. In any case, it should not present a person as a thing, a commodity without freedom, will, and feelings."
The full wording of the decision of the Regional Court is available here.
The press release of the Supreme Administrative Court is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.