Photoshop and advertising: Unlawful advertising practice?

Photoshop and advertising: Unlawful advertising practice?

Photoshop and advertising, unlawful advertising practise? In this regard, deceptive advertising has been a contentious issue in various fields. One of its most debated manifestations is the use of Photoshop and other editing tools to retouch images in advertising campaigns.

International cases, such as the one involving cosmetics company L’Oréal, have highlighted the importance of addressing this issue, leading consumer protection agencies to increasingly focus on this matter.

Can Photoshop be used to edit ads in Spain?

In Spain, although Spanish courts have not yet specifically ruled on this matter, the Self-Regulation Code developed by AUTOCONTROL in collaboration with the perfume and cosmetics sector addresses this issue.

It states that the use of “pre and post-production” techniques must adhere to the following principles: (i) the advertiser must ensure that the presentation of the product’s attributes is not misleading, (ii) digital techniques should not alter the models’ images to the extent that their body silhouettes or characteristics appear unrealistic or deceptive regarding the actual efficacy attributed to the product, and (iii) the techniques should not attribute qualities or functions to the product that it does not possess.

Unlike some neighboring countries, Spain has not included a specific provision in its legal framework that obligates advertisers to disclose the use of editing tools in advertising.

However, this does not imply that the use of such tools is lawful in all cases, as will be explained later.

International perspective on the issue: Use of editing tools in the UK

The UK has certain precedents regarding the illicit use of editing tools in advertising. For instance, in 2011, L’Oréal was forced to withdraw an advertising campaign in the UK featuring actress Julia Roberts and model Christy Turlington.

The Advertising Standards Authority (ASA) in the UK considered that the excessive use of Photoshop on Christy Turlington’s images was deceptive to consumers because the image did not accurately reflect the results achievable using the promoted product, as they had been exaggerated through “digital post-production techniques.”

This case and similar ones led the ASA to establish guidelines to avoid deceptive advertising related to the use of editing tools in the cosmetic industry. The ASA stated that digital retouching of an image must have limitations when it affects features directly related to the product’s performance and are relevant for understanding its efficacy.

For example, it is not considered acceptable to remove wrinkles around the eyes in ads for eye creams or artificially increase the length or thickness of eyelashes in mascara ads.

The French Advertising Regulatory Authority (ARPP) has also expressed a similar stance, creating a code of recommendations in 2019, inspired by a letter adopted by European associations in the cosmetic sector.

This code defines the limits of using digital techniques to enhance advertising images without misleading consumers about the actual performance of the product.

It is worth noting that France, along with Norway, has taken a step further in this regard by implementing legal provisions that require informing consumers whenever an advertising image or video has been digitally retouched.

Deceptive advertising: A common offense

In accordance with the Unfair Competition Act, any advertising practice that includes a message capable of misleading its recipients and resulting in an alteration of their economic behavior is considered deceptive and unlawful.

For this analysis, the perspective of an average consumer will be taken into account, defined as a reasonably attentive and perspicacious consumer.

As mentioned earlier, not every use of editing tools in advertising is lawful in Spain. It is reasonable to understand that it will be unlawful if it modifies the perception of the average consumer regarding the product’s offered features in a way that induces deception and alters their economic behavior accordingly.

It should be noted that, according to the Spanish Law of Civil Procedure (LEC), jurisprudence has established that the burden of proving the truthfulness and accuracy of advertising information falls on advertisers.

Conclusions: How to know when a retouched advertisement is unlawful?

While digital tools can be used to enhance the beauty of images and improve brand positioning, they should not alter the product’s characteristics in a way that misleads consumers about its results.

If an advertisement does not comply with these premises, it could be classified as deceptive and face legal consequences.

Indeed, the issue of deceptive advertising related to the use of Photoshop and other editing tools is a matter that should not be ignored.

Although this article has referred to retouching in cosmetic or makeup advertisements, it is worth noting that in France, there have been indications that editing food advertisements to make them more appealing may also be considered a form of deceptive advertising.

At Letslaw by RSM we can provide you with our experience in the digital law field. So do not hesitate and contact us for any doubt that you might have about digital advertising and its legal questions.