Report of the Special Rapporteur in the field of cultural rights, par. 101, par. 103 (a), (b), (c), (d), and par. 104 (a), (b), (c), (d), (e), (f), (g), (h) (2014)

Text of the recommendation

101. Many States have adopted laws, but commercial advertising and marketing remains mostly self-regulated. This situation is unsatisfactory, leading to poor overall implementation, gaps, inconsistencies and legal uncertainty for both the industry and the public, as well as a paucity of clear, transparent and efficient complaint mechanisms. (...)

103. The Special Rapporteur recommends in particular that: (a) States adopt legislation on commercial advertising and marketing that regroups dispersed codes of ethics and clearly refers to the obligation to respect and protect human rights, in particular the right to freedom of thought, opinion and expression, the right to privacy and family life, the rights of women, children, minorities and indigenous peoples, the right to health, food, education and leisure, the right to take part in cultural life and the right to artistic freedom; (b) Local authorities, in particular municipalities, adopt regulations in their spheres of competency regarding commercial advertising, with reference to human rights standards as mentioned in subparagraph (a) above; (c) Companies adopt self-regulatory codes, in compliance with human rights standards, establishing a global responsible marketing and advertising policy and prohibiting harmful and unethical advertising, in particular to children; (d) States, local authorities and bodies responsible for overseeing the implementation of self-regulated codes provide clear, simple and easily accessible information to their constituents about the legal framework in place, the authorities responsible and the remedies available, with a good initiative being to issue practical guidelines for citizens and consumers of the various rules and codes in place and possible remedies. 104. The Special Rapporteur recommends that legislation, regulations and policies adopted by States and local authorities, where relevant: (a) Be adopted or amended following consultations with civil society organizations, and not only the corporate sector; (b) Be geared towards reducing the level of commercial advertising and marketing that people receive daily, indicating in particular what should be considered as unreasonable in terms of, for example, the number, intensity and frequency of advertisements, sound volume, luminosity, location and size, and be aimed at the proactive implementation of environmental and other legislation through the prompt removal of illegal advertising; (c) Be based on the fundamental principle that commercial advertising and marketing should always be clearly identifiable and distinguishable from other content on all media, in all places and on all supports, and that this be tested with the target audience and be applied to all new advertising strategies, including the use of brand ambassadors and native advertising; ensure that messages are labelled as advertising in an internationally recognized format; and establish a compulsory, clear and uniform system of labelling for all in-game advertising and “advergames”; (d) Prohibit all resort to subliminal and surreptitious methods, and restrict advertising that is processed implicitly, taking into consideration various factors such as the age and capacity of the persons targeted as well as the amount of advertisements they receive, and provide that the example of countries that have restricted brain-imaging techniques to scientific, medical and judiciary usage be followed; (e) Ban all commercial advertising and marketing in public and private schools and ensure that curricula are independent from commercial interests; (f) Further identify spaces that should be completely or especially protected from commercial advertising, such as kindergartens, universities, nurseries, hospitals, cemeteries, parks, sports facilities and playgrounds, as well as cultural heritage sites and such cultural institutions as museums, with the banning or drastic limitation of outdoor advertising as an option, as exemplified by several cities in the world; (g) Prohibit all forms of advertising to children under 12 years of age, regardless of the medium, support or means used, with the possible extension of such prohibition to children under 16 years of age, and ban the practice of child brand ambassadors; (h) Contain unequivocal definitions, in particular of the various advertising and marketing practices being regulated, measurable targets and strong monitoring mechanisms with meaningful sanctions.