Item 69 (b) of the provisional agenda*
Promotion and protection of human rights: human rights
questions, including alternative approaches for
improving the effective enjoyment of human rights
and fundamental freedoms
Note by the Secretary-General
The Secretary-General has the honour to transmit to the General Assembly the report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, submitted in accordance with Human Rights Council resolution 19/6.
Report of the Special Rapporteur in the field of
In the present report, the Special Rapporteur in the field of cultural rights considers the impact commercial advertising and marketing practices have on the enjoyment of cultural rights, with a particular focus on freedom of thought, opinion and expression, cultural diversity and ways of life, the rights of children with respect to education and leisure, academic and artistic freedom and the right to participate in cultural life and to enjoy the arts.
Examining new trends in advertising and marketing strategies, the Special Rapporteur is concerned by the increasingly blurred line between commercial advertising and other content, especially in the areas of culture and education. An overall concern relates to the disproportionate presence of commercial advertising and marketing in public spaces, the myriad advertisements and marketing messages people receive daily, the dissemination of such communications using a large variety of media in a systematic and integrated way and the resort to techniques aimed at circumventing individual rational decision-making.
The report concludes that States should protect people from undue levels of commercial advertising and marketing while increasing the space for not-for-profit expressions. Within the framework of article 19 of the International Covenant on Civil and Political Rights and based on the view that commercial messaging may be granted less protection than other forms of speech, the Special Rapporteur recommends that States regulate the area more effectively. Of particular note is the recommendation to ban all commercial advertising and marketing in public and private schools.
1. Cultural rights are the rights of each person, individually and in community with others, as well as groups of people, to develop and express their humanity, their worldview and the meanings they assign to their existence and development through, inter alia, values, beliefs, convictions, languages, knowledge and the arts, institutions and ways of life. They also encompass the right to access and enjoy cultural heritage and resources that allow such identification and development processes to take place.
2. Commercial advertising and marketing practices encompass a diversity of tools and methods to sell and promote services or products. Adapting quickly to new technologies, these practices constantly evolve, using both overt and less overt messaging. Recognizing different forms of advertising and clearly distinguishing between commercial advertising and other content is increasingly difficult. The myriad commercial messages people receive on a daily basis is striking, as is the large variety of media used in a systematic and integrated way.
3. Commercial advertising and marketing practices have an increasing impact on the cultural and symbolic landscapes we inhabit and more widely on our cultural diversity. Always aiming to sell, this commercial messaging has the potential to deeply influence the philosophical beliefs of people and their aspirations, as well as cultural values and practices, from food consumption models to burial rituals, including tastes and beauty canons.
4. Innumerable factors influence people’s choices and philosophies. The human rights-based approach supports the free sharing of ideas and world visions. As expressed in United Nations Educational, Scientific and Cultural Organization (UNESCO) instruments, cultural diversity can be protected and promoted only if human rights and fundamental freedom, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed.
5. On this premise, the Special Rapporteur, mandated by the Human Rights Council to identify possible obstacles to the promotion and protection of cultural rights, decided to address the potential impact of commercial advertising and marketing practices on cultural rights. Today, the dominance of specific narratives and world views promoted through commercial advertising and marketing in public spaces, the family and private spheres, combined with an increased deployment of techniques that may influence people at a subconscious level, raises particular concerns in terms of freedom of thought, opinion and, more widely, cultural freedom.
6. To elicit the views of States and other stakeholders, the Special Rapporteur disseminated a questionnaire on the impact of advertising and marketing practices on the enjoyment of cultural rights. Responses were received from 27 States,
16 national human rights institutions and 5 other stakeholders.1 The Special Rapporteur also convened an experts’ meeting on the issue on 28 and 29 October 2013 in New York (see annex). She is grateful to all those who contributed.
II. Legal framework
A. Relevant human rights provisions
7. Commercial advertising and marketing practices are generally considered to fall to some extent under provisions protecting freedom of expression, such as article 19 of the Universal Declaration of Human Rights and article 19 (2) of the International Covenant on Civil and Political Rights, which states that the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers. In general comment 34, the Human Rights Committee stressed that the right to freedom of expression “may also include commercial advertising” (CCPR/C/GC/34, para. 11).
8. Hence, the regulation of commercial advertising and marketing practices should follow the principles enunciated in international and regional instruments regarding possible limitations to freedom of expression. In accordance with article 19 (3) of the International Covenant on Civil and Political Rights, restrictions shall only be such as are provided for by law and are necessary for respect of the rights or reputations of others. The Special Rapporteur notes that the rights to freedom of thought, opinion and expression, the right to privacy and family life, the rights of women, children, minorities and indigenous peoples, the rights to food, health, education, leisure and to take part in cultural life, as well as artistic freedom, as set out in regional and international human rights instruments, deserve particular attention in this respect.
9. Article 19 (3) of the International Covenant on Civil and Political Rights also provides that restrictions may be necessary for protecting national security, public order, public health or morals. The Human Rights Committee, in general comment No. 22, stressed that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition(CCPR/C/21/Rev.1/Add.4, para. 8). According to the Committee, it may be permissible in certain circumstances to regulate speech-making in a particular public place (CCPR/C/GC/34, para. 31).
10. Restrictions to freedom of expression should always be the least restrictive and be proportionate to achieving the purported aim. The Special Rapporteur stresses, however, that commercial advertising and marketing may be granted less protection than other forms of speech.
11. The European Court of Human Rights, recognizing that information of a commercial nature cannot be excluded from the scope of article 10 of the European Convention on Human Rights,2 considered that States have a greater margin of appreciation to impose restrictions on freedom of expression in commercial matters.3
B. Relevant instruments of the United Nations Educational, Scientific and Cultural Organization
12. Article 6 of the UNESCO Universal Declaration on Cultural Diversity states:
While ensuring the free flow of ideas by word and image care should be exercised so that all cultures can express themselves and make themselves known. Freedom of expression, media pluralism, multilingualism, equal access to art and to scientific and technological knowledge, including in digital form, and the possibility for all cultures to have access to the means of expression and dissemination are the guarantees of cultural diversity.
13. In its preamble, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions recognizes that the diversity of cultural expressions, including traditional cultural expressions, is an important factor that allows individuals and peoples to express and to share with others their ideas and values. According to article 2, cultural diversity can be protected and promoted only if human rights and fundamental freedom, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed.
C. Standards applicable to business enterprises
14. The Guiding Principles on Business and Human Rights offer a general framework regarding States’ duty to protect against human rights abuses by business enterprises and the corporate responsibility to respect human rights (see A/HRC/17/31).
15. More detailed instruments relevant to the issue of advertising are also available. In particular, the Children’s Rights and Business Principles were released jointly by the United Nations Children’s Fund (UNICEF), the United Nations Global Compact and Save the Children in 2013. Principle 6 calls upon corporations to ensure that communications and marketing do not have an adverse impact on children’s rights; comply with the standards of business conduct in World Health Assembly instruments regarding marketing and health; and use marketing that raises awareness of and promotes children’s rights, positive self-esteem, healthy lifestyles and non-violent values.
16. The Committee on the Rights of the Child, in its general comment 16, stressed the duty of States to ensure that business activities and operations do not have an adverse impact on children’s rights, mentioning specifically marketing to children of products with a potential long-term impact on their health. The Committee noted that children may regard marketing and advertisements as truthful and unbiased, and recommended that States adopt appropriate regulations, encourage business enterprises to adhere to codes of conduct and use clear and accurate product labelling and information that allow parents and children to make informed consumer decisions (see CRC/C/GC/16, paras. 19 and 59).
17. Rules have also been adopted for television broadcasters. Directive 2010/13 of the European Union, for example, sets minimum rules and standards aiming to protect minors and human dignity. In particular, audiovisual commercial communications must be readily recognizable and surreptitious audiovisual commercial messaging and subliminal techniques are prohibited. The directive also stipulates that the transmission of audiovisual media services should ensure respect for cultural and linguistic diversity. The 1989 European Convention on Transfrontier Television contains similar provisions.
D. Standards at the national level
18. Responses to the questionnaire and other data indicate a variety of regimes concerning advertising. Some countries4 distinguish between commercial and non commercial speech, with the latter usually being granted a higher level of protection. In many cases, a main obligation is that advertising be clearly identifiable as such; however, reports indicate that tests with the participation of targeted consumers are rarely carried out to ensure this.
19. Some countries5 have specific laws on advertising indicating, for all media and issues, what is considered to be inappropriate and unlawful advertising. In the absence of such specific laws, provisions are found in legislation related to health, child protection, urban development, environmental protection and countering discrimination, for example. In other countries,6 however, most details, including specific groups of people with special protection, are included in non-binding codes. Hence, one characteristic of the advertising and marketing sector is the coexistence of regulation and self-regulation, the latter generally inspired by the Consolidated International Chamber of Commerce (ICC) Code of Advertising and Marketing Communication Practice.
20. Areas traditionally regulated by States include the advertising of tobacco, alcohol, firearms and medical products and the protection of specific groups of people, such as women, persons with disabilities, children, minorities and indigenous peoples. In addition, practices such as comparative advertising or misleading and false advertising are often prohibited, and data protection is regulated to some extent.
21. Codes of conduct adopted by advertising agencies and the media provide ethical and behavioural rules. Whether medium-specific or covering all media, codes usually stipulate that advertising should not be misleading, create discrimination or incite violence and must be obviously distinguishable from editorial content. Issues covered include decency, honesty, fair competition, social responsibility, truthfulness, comparisons, denigration, testimonials, safety and health, children, data protection and privacy.
22. The multiplicity of State regulations and industry codes makes understanding and usage extremely difficult. For example, codes do not cover all aspects of advertising and the same advertising campaign can be covered by several codes for different media. This creates uncertainty for companies as well as citizens and consumer interest groups, with the latter unsure of where and how to lodge a complaint. There is a lack of transparency in how the various regulations and self-regulation codes relate to each other and their implementation.7
23. The Special Rapporteur is concerned about the confusion that can result concerning the hierarchy of norms, where and how to file complaints and who has the authority to penalize violations. While States’ responses indicate that a number of bodies have monitoring or disciplinary powers, whether those bodies can impartially address complaints is unclear. The number of cases addressed seems minimal.
24. Some aspects of advertising and marketing practices, such as “neuromarketing”, are rarely covered by specific regulations. Responses to the questionnaire indicate that States have not yet accorded this issue priority status.
25. Market research is self-regulated through the 2007 ICC/European Society for Opinion and Marketing Research International Code on Market and Social Research, article 9 of the Consolidated ICC Code and other codes.8
III. Advertising and marketing practices: selected
A. Evolution of advertising and marketing practices
26. Today, people receive an ever-increasing number of commercial messages disseminated in a systematic and integrated manner across multiple media, in the public and private spheres, in physical and digital spaces. While varying from one country to another, the level of commercial advertising seems to be on the rise everywhere, deploying increasingly sophisticated strategies, resulting in a progressively blurred line between advertising and other content, especially in the areas of culture and education.
27. New forms and techniques of advertising and marketing have appeared, including:
(a) Digital advertising and marketing using electronic devices, such as computers, tablets, mobile phones, digital billboards and games, to engage with consumers and business partners;
(b) Viral and social media advertising and marketing, rapidly spreading on the Internet through the use of existing social networks or by contracting individuals to enter online communication forums for the specific purpose of promoting a product;
(c) The use of “brand ambassadors”, acting, for example, in schools and universities;
(d) Embedded advertising, inserting a product or service within television programmes or series, movies, music, videos, games or school activities;
(e) Native advertising (or branded/sponsored content), in which advertisers sponsor or create editorial-like content;
(f) Online behavioural advertising that tracks consumers” online activities over time (including searches conducted, web pages visited and content viewed) to supply them with targeted advertising;
(g) Many advertisers claim they use neuromarketing, including brain imaging, to elaborate advertising and marketing strategies.
28. The power of advertising to influence individual choices demands a careful assessment of the means advertisers use, taking into consideration in particular the rights of people to privacy and to freedom of thought, opinion and expression, as enshrined in particular in articles 17 to 19 of the International Covenant on Civil and Political Rights, as well as their rights to education and to participate in cultural life, as protected in particular in articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights.
29. In the past, advertising was mainly informative. That changed in the 1920s9 and today much contemporary advertising focuses on the link between emotional responses and decision-making, benefiting from advances in behavioural sciences and playing on subconscious desires.
30. Surreptitious communications (misleading the public about their advertising nature) and subliminal techniques (enabling messages to be received below the level of conscious awareness) are prohibited in some countries as well as in some international and regional instruments, in particular in Europe. Not all countries have taken that step, however, leading to the circumvention of this basic and important principle by the advertising and marketing strategies described above.
31. The scientific community in particular has expressed concern about neuromarketing, or the use of advances in the neurosciences to develop commercial advertising and marketing strategies. The neurosciences encompass all disciplines that study the nervous system, including biology, chemistry, genetics, computer science and psychology. The aim is to send messages directly to the brain, thereby circumventing rational decision-making. Some States, including France, have limited the use of brain-imaging techniques to scientific, medical and judiciary usage, specifically excluding use in advertising. Others, including Slovakia, consider that existing prohibitions of subliminal messages apply equally to neuromarketing practices (see also the response of Bosnia and Herzegovina).
32. Loud sound effects or moving screens in public spaces are particularly intrusive. This technology exploits the fact that any motion picture at the periphery of our visual field automatically captures our attention, triggering increased levels of alertness and stress that promote the storage of the message. Some advertising screens contain sensors measuring the intensity of the individual’s gaze, known as eye tracking, involving people in large-scale advertising experimentation without their prior and informed consent.10 Many other techniques, such as extreme repetition of the same commercial message on multiple media, also raise concerns regarding the right to freedom of thought and opinion.
33. The issue of consent needs to be included in discussions about the impact of advertising and marketing strategies on human rights. For example, some people claim a right not to receive advertising,11 while others call for provisions to opt out from exposure to advertising and for the development of software to block online advertising.12
34. More generally, it is often claimed that consumers relinquish their privacy and consent to becoming targets of advertising, in particular digital advertising, to benefit from lower prices for products and services. The Special Rapporteur notes, however, that in many cases consumers and citizens are not fully aware that their privacy is being breached or to what extent and what this entails in terms of their freedom of thought and opinion.
B. Concentration of media and of advertising groups
35. The right to information and the right to participate in cultural life imply the possibility of gaining access to diverse information, opinions and cultural expressions, as well as a plurality of media sources. Concentration of ownership of media industries is on the increase, however, diminishing the diversity of media content and plurality of programmes in cultural, social and political terms.13 Both the Human Rights Committee (see CCPR/C/GC/34, para. 40) and the Special Rapporteur on freedom of opinion and expression (see, e.g., A/HRC/26/30,
paras. 66-68) have expressed their concerns on this issue.
36. Countries have adopted measures to limit media concentration and protect media pluralism, in particular by promoting diversity of content or establishing a “must carry” principle, requiring, for example, that cable television systems dedicate some of their channels to local broadcasting stations.
37. These issues merit further inquiry and attention, given the increased dependency of print and audiovisual media on advertising revenue coupled with the increased concentration of advertising groups. A few groups have enormous power in negotiating advertising spaces, favouring media that best fit the interests of their client companies, meaning media that do not depict their clients negatively and proactively promote a suitable environment to enhance the consumption of their products and/or services. This can result in wide self-censorship of journalists and media owners, having a significant impact on editorial content and cultural programming.14