The (non) regulation on gender discrimination in advertising in Sweden

AutorEva-Maria Svensson
Cargo del AutorProfessor, LLD, Department of Law, University of Gothenburg and Faculty of Law University of Tromsø

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I Introduction

The aim with this article is to present and discuss the (non)regulation on gender discrimination in advertising in Sweden. Although high ambitions with gender equality (equality between women and men) in general, Sweden has been reluctant to adopt legal regulation on gender discrimination in advertising since the question was brought up to the agenda in the beginning of the 1970s. The Swedish way to deal with the problem is to rely on a self-regulatory body. This system can be criticised for not being proactive, but rather reactive. What is more, the space for and legal support for commercial messages in media over time is increasing. In this context, the question of discrimination in advertising is more urgent today than it has been before.

To start with I’ll give some definitions of key concepts. Second, the context of Swedish gender equality policy and legislation is presented. Third, the political debate in a Swedish and EU context is reflected upon. Fourth, the legal and non-legal system of dealing with gender discrimination in Sweden is presented. Finally, some reflections on the current situation are made.

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II Definitions of key concepts

To start with, one key concept in this article is advertising. Advertising stands for communication publicly promoting some product or service. As synonyms, the concepts of adverts or commercial messages are used.

Sex can be, firstly, the classification of a person’s sex as woman or man, and, secondly, sexuality. Gender is the notion of what is supposed to be male or female. The distinction between sex and gender is often understood as a distinction between the biological and the social aspect of being a man or a woman. When used in advertising, sex often means that women are showed in a way that tends to sexualize them or make the person who watches the image to think of sex. Gender is often connected to stereotype images of what is supposed to be female or male.

In feminist research in Sweden gender is used as an analytical concept with which it is possible to analyse both notions on women and men and power structures in society. In EU politics and in Swedish politics gender is often used as a synonym for women or equality between men and women.

The concept of gender discrimination in advertising includes both sex discrimination and gender stereotypes in advertising. Sex discrimination in advertising is discrimination on the ground of sex and/or sexualizing women. The latter form is also talked about as ‘sex sells’. Sex in advertising or sex sells is the use of sexual or erotic imagery in advertising to draw interest to a particular product, for purpose of sale. A feature of sex in advertising is that the imagery used, such as that of a pretty woman, typically has no connection to the product being advertised. The purpose of the imagery is to attract the attention of the potential customer or user. The type of imagery that may be used is very broad, and would include nudity, cheesecakes (images of handsome women), and beefcakes (images of handsome men), even if only suggestively sexual.

Sex in advertising builds on the premise that people are curious about sexuality and that experience in marketing has been that sexuality sells products. From a marketing point of view, sexuality can have biological, emotion-al/physical or spiritual aspects. The biological aspect of sexuality refers to the reproductive mechanism as well as the basic biological drive that exists in all species, which is hormonally controlled. The emotional or physical aspect of sexuality refers to the bond that exists between individuals, and is expressed through profound feelings or physical manifestations of emotions of love, trust, and caring. There is also a spiritual aspect of sexuality of an individual or as a connection with others. Advertisers may and do use the various aspects of sexuality in advertisements.

When sexuality is used in advertising, certain values and attitudes towards sex are necessarily ‘sold’ along with a product. In advertising terms, this is called «the concept». The message may be that «innocence is sexy» (as used by Calvin Klein when it uses young people in provocative

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poses), or that link pain and violence with sexiness and glamour (as used by Versace), or that women enjoy being dominated, or that women come with a product (e.g. in the advertisement for Budweiser Beer), or that the use of a certain product is naughty but legal, or that use of a certain product will make the user more attractive to the opposite sex, and many other messages.

Historically, it is a common opinion that advertising has used women in erotic roles and poses more often than men. However, in recent years young men have increasingly been used in a similar manner, though women continue to be depicted in sexualized roles disproportionately. The use of female models in such roles is believed to attract the attention of potential male customers; however, ironically, research shows that most major purchases are made by women.

With the concept of gender stereotypes in advertising, stereotype performances of women, men, girls and boys, are captured. Stereotypes can also be seen when two persons of different sexes are showed together. When couples are used in an advert, the sex-roles played by each also sends out messages. The interaction of the couple may send out a message of relative dominance and power, and may stereotype the roles of one or both partners. Usually the message would be very subtle, and sometimes advertisements attract interest by changing stereotypical roles.

Finally, with Sexist advertising, advertising with gender discriminatory consequences is focused.

III The context of swedish gender equality policy and legislation

The Nordic countries, particularly Sweden, are well-known throughout the world as leading countries concerning gender equality policy. In 1995, the United Nations extolled Sweden as the most gender equal country in the world. In the World Economic Forum Gender Gap Index 20111, Sweden was at the forth position, passed by Norway, Iceland and Finland. The Nordic countries are seen as influential when it comes to measures for obtaining gender equality both on a European and an International level. A description of gender equality legislation has to be complemented with a description of the context in which the legislation is valid.

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During more than 30 years, gender equality policy has been a specific policy area.2 Gender equality policy encompasses all areas of life and the state has ambitions and legitimacy to promote gender equality in areas controversial in other countries (such as for example prohibition of buying sex). The explanation for this state legitimacy is maybe the old tradition of the relationship between the state and the citizens. Faith in the state’s ability to promote (social) equality and gender equality through legislation has been virtually unwavering, especially in Sweden. The state is understood as good and almost the same as the society and the citizens have trust in the state.3

The high degree of gender equality reached in Sweden, relatively speaking, has partly to do with progressive equality policy in general. Equality is a main characteristic in Nordic democracy both as an issue of social and economic equality and gender equality. The Nordic equality model has its historical roots in the nation state formation based on egalitarian and communitarian elements. ’The Scandinavian aura’ sometimes hovering the Nordic countries, may be defined as »welfare state, gender equality, and common legal heritage».4 The ’Nordic model’ usually connotes distributive justice and a substantive notion of equality. The present understanding of Nordic equality is however a product of a little less than hundred years of progressive social policy, called social engineering.5

The progressive social policy and equality policy are based on economic growth, progressive welfare and educational policies as well as presence of women in policy and in labour force.6 The dominant ideology is the work-line and the self-supporting individual. The norm of freedom to choose whether you, as a woman, should work outside or inside home, was taken over by the gender equality norm. Both men and women are supposed to be economic independent and take part in the labour force. Care work is (mostly) arranged and performed in the public sphere, by female labours.

When it comes to legislation, Sweden as a member of EU, has almost similar legislation as other member states when it comes to anti-discrimination legislation in working life and other areas like business and social secu-

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rity, which comes under the jurisdiction of EU. The significant gender equal promoting legislation in Sweden is in other areas, outside the jurisdiction of EU, such as family life, reproduction and sexuality.

Gender equality legislation is more restricted than policy.7 The policy encompasses all areas of life. There is an overall principle of gender equality in the constitution as well as in the EU treaty, although legislative measures are restricted to specific issues. The overall legal principle in EU is, since 1999, a principle of substantial gender equality that makes the states obliged to promote gender equality, and not only to prohibit discrimination. The gender equality principle in the Swedish constitution is, strangely enough, a formal one with some exceptions of substantial character. However, the EU principle of substantial gender equality is in fact applicable in Sweden. And Swedish law...

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