International Legal Framework

Ending gender stereotyping and sexist portrayals in advertising and media has long been understood to be key to the realisation of equality between women and men. Governments and international organisations regularly recognize the need to address stereotypes as key to anti-discrimination efforts. But concrete actions in this field are rare. Where legislation exists, it is often hampered by concerns for freedom of speech which are seen as taking precedence.

International Legal Framework
The international legal framework to combat gender stereotyping is limited. Moreover, it is rarely used by states to promote equality between women and men. There is one legally binding convention: CEDAW, and one political document: the Beijing Platform for Action.

CEDAW

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) was agreed in 1979 and has been ratified by all the countries of the EU.

Article 5 of the CEDAW Convention concerns stereotypes.
The first paragraph of the article reads:
“States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

This article has been used successfully by women’s organisations to challenge sexist advertising, for example by DEMUS in Peru as early as the 80s.

In December 2000, an Optional Protocol to CEDAW entered into force. The Protocol submits signatories to the judicial oversight of the CEDAW Committee. All EU Member States with the exception of Estonia, Latvia and Malta are signatories.

The Protocol contains two procedures:

(1) A communications procedure allows individual women, or groups of women, to submit claims of violations of rights protected under the Convention to the Committee. The Protocol establishes that in order for individual communications to be admitted for consideration by the Committee, a number of criteria must be met, including that domestic remedies must have been exhausted.

(2) The Protocol also creates an inquiry procedure enabling the Committee to initiate inquiries into situations of grave or systematic violations of women’s rights. In either case, States must be party to the Convention and the Protocol. The Protocol includes an “opt-out clause“, allowing States upon ratification or accession to declare that they do not accept the inquiry procedure. Article 17 of the Protocol explicitly provides that no reservations may be entered to its terms.
CEDAW has been successfully cited to combat stereotyping of women in rape trials:

On 16 July 2010, the CEDAW Committee held in Karen TayagVertido v. The Philippines that evidence of wrongful gender stereotyping in a Filipino rape trial amounted to a violation of articles 2(f) and 5(a) of CEDAW.

The case of Vertido was the first communication before the CEDAW Committee to principally focus on wrongful gender stereotyping. Before then, the precise scope of state obligations stemming from article 5(a) of CEDAW had been left unexplained.

Beijing Platform for Action

In 1995 the Fourth World Conference on Women adopted the Beijing Platform for Action. This document, although not a legal text, provides a strong political commitment of signatory states and is very progressive in its content. The EWL was present at the conference, advocating for the EU also to be implicated. The call for action is addressed to government and international organisations and the EU submits its review every 5 years alongside the Member States.

The 1995 Beijing Platform for Action calls on governments and other relevant stakeholders to tackle gender stereotypes in public and private life.

Objective 12 of the Platform for Action is to ‘promote a non-balanced and non-stereotyped portrayal of women in the media’. The Platform calls on governments and international organisations to take action “to the extent consistent with freedom of expression”.

Governments are committed to:

(d) Encourage the media to refrain from presenting women as inferior beings and exploiting them as sexual objects and commodities, rather than presenting them as creative human beings, key actors and contributors to and beneficiaries of the process of development;

(e) Promote the concept that the sexist stereotypes displayed in the media are gender discriminatory, degrading in nature and offensive;

(f) Take effective measures or institute such measures, including appropriate legislation against pornography and the projection of violence against women and children in the media.

The UN General Assembly has consistently stressed that persisting gender stereotypes constrain progress in implementing the Beijing Platform for Action, and called for actions to eliminate gender-based stereotypes. Last year, UNESCO developed a set of indicators to assess and monitor the implementation of these commitments. The EWL was part of this process.

Council of Europe

The Council of Europe is a 47 member international organisation based in Strasbourg, best known for its 1950 European Convention on Human Rights and the European Court of Human Rights set up to enforce the Convention. Article 14 of the Convention prohibits discrimination based on sex (and other grounds).

The Parliamentary Assembly of the Council of Europe has issued some resolutions touching upon gender stereotypes. These have political weight but are not legally binding and there are no monitoring or enforcement mechanisms.

In 2002, the Assembly called on member governments to, among others, adopt binding legislation to end stereotypical portrayals of women in the media (2002: Resolution 1555 on the image of women in the media: http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta02/EREC1555.htm).

In 2007, the Assembly addressed the image of women in advertising and called for a mixture of regulation, self-regulation and education. Governments were called upon to sign the Optional Protocol to CEDAW and implement the Beijing Platform for Action recommendations (2007: Resolution 1557 on the image of women in advertising: http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta07/ERES1557.htm).

EU Policies and Legislation

Since 1997, the EU is Treaty-bound to protect and promote equality between women and men in all its work (article 3.3 TEU ) (gender mainstreaming).

However, the EU has made slow progress in ensuring that the principle of gender equality is applied and implemented in the media. This is partly due to the so-called “cultural exception”, which excludes education and media from the remit of EU legislation. Thus, the very important December 2004 EU Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services (Council Directive 2004/113/EC) contains a provision specifically excluding its application to the “content of media or advertising”.

The one binding text the EU has which touches upon this issue is the “Television without Frontiers” Directive of 1989 (Council Directive 89/552/EEC of 3 October 1989) which in 2007 was revised to cover a broader range of media services and renamed the “Audiovisual Services Directive”. This legislation applies to the content of broadcasting and advertising and says that these “should not jeopardise respect for human dignity or include any discrimination on grounds of sex”. As a Directive, it is legally binding but leaves the means of implementation up to individual Member States which makes monitoring compliance more difficult.

There are more general and stronger-worded legislative texts covering stereotypes and the media but they are non-binding, i.e. they carry political weight but are not binding for Member States:

In 1995, the Council of Ministers representing the national governments adopted a Resolution on the image of women and men portrayed in advertising and the media (Resolution 41995X1110(01). In this Resolution the Council called on its members to take action to “provide for appropriate measures” to end discrimination in the media.

In 2006, the European Parliament (EP) and the Council amended the 1998 Recommendation on the Protection of Minors and Human Dignity in Audiovisual and Information Services in the framework of the Community Programme for a Safer Internet 2005-2008 (Recommendation 2006/952/EC). It calls on the Member States to “act with greater determination in this area” and to develop for industry “effective measures to avoid discrimination based on sex”. However, other changes in the text weaken the protection that the Recommendation affords: two additions in para. 17 and recommendation I-3(a) insist on the need to consider the protection against discrimination only ‘without infringing freedom of expression or of the press’. Also, while a 2004 amendment reinforced the gender aspect of the text by recommending that Member States and the industries concerned ‘develop effective measures to avoid discrimination based on sex’, the 2006 Recommendation replaced this by a call to simply ‘consider’ such means.

In September 2008, the EP passed a strong Resolution on how marketing and advertising affect equality between women and men. The Resolution argues for ‘the need to eliminate from textbooks, toys, video and computer games, the internet and new information and communications technologies (ICTs), and from advertising through different types of media, messages which are contrary to
human dignity and which convey gender stereotypes’.

The Parliament called on the Commission to intensify its efforts against discrimination in the media and for further research on this topic (European Parliament Resolution of 3 September 2008 on how marketing and advertising affect equality between women and men
(2008/2038(INI). On 13 November, the European Parliament’s Women’s Rights and Gender Equality Committee adopted a Resolution on “Eliminating Gender Stereotypes in the EU”. The draft resolution points out that advertising can challenge stereotypes and racism, sexism and discrimination. MEPs call on Member States to establish independent regulation bodies to monitor the media and advertising industry and impose sanctions on companies and individuals that promote sexualisation of girls. The resolution is scheduled for a plenary vote in March 2013. The Parliament is also currently working on a Report on the Sexualisation of Girls.

a. Other documents/ initiatives

Finally, the EU institutions regularly set eliminating gender stereotypes as a priority, for example in the Commission’s Roadmap for equality between women and men (2006-2010COM(2006)92) or in the programme of the 2007 onwards Trio presidency of Germany-Portugal-Slovenia. In the case of the Roadmap no significant progress has been reported. In the case of the presidency priority, no specific action was taken by the Commission during the period.

Self-regulation

While advocating for legislation and, in particular, the implementation of existing legal frameworks, women’s organisations can also effectively harness self-regulation organisations and commitments to further their demands.

Industry is keen on self-regulation in particular when it becomes the only alternative to regulation. The interest the European Parliament has recently been showing to stereotypes in advertising has energised certain industries to pre-empt further action from the EU level. Women’s associations can make use of this momentum.

While not all EU countries have even a general legal framework at the national level concerning the prevention of stereotypes, almost all have national advertising codes, based on the International Chamber of Commerce’s Consolidated Code of Advertising and Marketing Communication Practice (2006), first issued in 1937. The exceptions are Latvia, Malta and Denmark.

This Code is designed primarily as an instrument for self-discipline but it is also intended for use by the courts as a reference document within the framework of applicable laws. According to EASA (European Advertising Standards Alliance), the codes are normally interpreted to mean that no advertisement should cause either grave offence to a minority or lesser offence to a much wider audience. It contains articles on sincerity (photoshopping) as well as on social responsibility.

Article 4 says that “marketing communication should respect human dignity and should not incite or condone any form of discrimination, including that based upon race, national origin, religion, gender, age, disability or sexual orientation. [……….]”.

At the EU level, the EWL has been working with certain industries, in particular the cosmetics industry, to implement tailor-made effective self-regulation procedures. The EWL contributed to the drafting of guidelines and is working with industry to explain the importance of action and develop implementation procedures. We are seeking creative ways to engage advertisers, for example with an award for best practices. At the same time, we are stressing the need for effective, independent, monitoring and sanctioning bodies to ensure the credibility of self-regulation. As the draft EP Resolution on stereotypes also notes, it is essential that self-regulatory authorities also receive gender training and have a remit judge with wider discretion on the balance between gender equality and freedom of expression. At present, the response to complaints is too often that advertisements “reflect current societal norms”. Indeed, the low number of complaints on the grounds of gender received by these authorities where they exist shows how engrained stereotypes are, as well as how little SROs (self-regulatory professional organizations) are seen to have power.

Conclusion

In conclusion, there is still a way to go in ensuring an effective international legal framework for combating gender stereotypes. However, there is a growing understanding at the EU level for the need to tackle the issue in order to move beyond the deadlock which hampers other efforts to promote equality between women and men. Working on self-regulation offers one avenue for action.

However, this should not prevent further, stronger action to ensure the fundamental value of equality between women and men is respected and promoted.