Elena Millan and Richard Elliott Offensive Advertising, Public Policy, and the Law: The Rulings on the Zagorka Case

ABSTRACT. This paper examines the case of a controversial beer advertisement which was promulgated in Bulgaria in 2001, and which provoked eight lawsuits against the brewery, its advertising agency, and the Bulgarian National Television. The case set a precedent in Bulgaria and generated considerable public interest and debate. To the best of the authors’ knowledge this is the first case in Eastern Europe when individuals have challenged companies in the courts of law because of offence caused by an advertisement. The present study discusses how the public bodies responsible for protecting consumer interests and the courts of first instance assessed the advertisement in the context of Bulgarian public policy regarding offensive advertising.

Bulgarian consumers have been introduced to modern advertising practices relatively recently. During the decades of central planning prior to 1989, the role of advertising in Bulgaria, as in most of the countries of Eastern Europe, was very limited primarily because the demand for consumer goods considerably exceeded their supply. Besides, Western style advertising was painted in the colours of the class struggle and was considered to be one of the major tools offering ‘‘the best conditions, forms and means for manifestation of the ideological and political functions of bourgeois marketing’’ (Karakasheva & Boeva, 1979, pp. 76–77). With the transition to democracy and a market economy, new advertising approaches were introduced to promote the commercial goods of local and international companies, which led to fundamental changes in the advertising landscape. Despite the rapid evolution of advertising in the countries from the region, however, academic research on the topic has been scant. With very few exceptions (e.g., Feick & Gierl, 1996; Kelly-Holmes, 1998), there is no published research on advertising in Central and Eastern Europe after the introduction of market reforms. The present study gives a glimpse of the advertising practices in Eastern Europe and contributes to knowledge by examining the regulatory aspects of advertising in a country about which very little is Journal of Consumer Policy 27: 475–493, 2004. Ó 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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known. During the 1990s advertising in Bulgaria developed under conditions of general institutional instability and lack of regulations. As a result, Bulgarian consumers have been exposed not only to professionally produced advertisements, but also to advertisements at odds with prevailing social norms, and advertisements providing misleading information. Since the introduction of the Law on Consumer Protection and Trade Rules in 1999 regulators have been systematically clamping down on misleading advertising and have also condemned some cases of offensive advertising. Yet controversial advertisements continue to appear in the media, particularly amongst those promoting alcoholic drinks. At the time of preparation of this paper (Spring 2004), Bulgarian society is involved in a public discussion about the possible prohibition of all alcoholic drinks advertising. The study focuses on one particular case of beer advertising which resulted in several lawsuits and generated considerable public debate – the case of the Zagorka advertisement. The episode examined here is not the first advertisement which has reached Bulgarian courts. However, the Zagorka case is significantly different from other legal cases. It set a precedent in Bulgaria, and to the best of our knowledge this is the first case in Eastern Europe when individuals have challenged companies in the courts because of an alleged offence to women’s dignity caused by an advertisement. The case, which touched the very heart of gender relations in this country, had a remarkable social resonance. To date no other case has provoked so much public debate in Bulgaria as the innocuously looking advertisement of Zagorka, which polarised Bulgarian public opinion and galvanised Bulgarian feminists. The present study reports on the recent decisions of the courts of first instance in the context of Bulgarian public policy with regard to offensive advertising. More specifically, it discusses how this advertisement, which has provoked complaints of sex discrimination, has been assessed by the public bodies responsible for the protection of consumer interests, and by the Bulgarian courts.

THE LEGAL AND INSTITUTIONAL BACKGROUND TO THE REGULATION OF ADVERTISING IN BULGARIA

Advertising regulation in Bulgaria has been adopted relatively recently. Since 1997 Bulgaria accelerated its economic reforms and started rapidly to align its legislation with EU law. Amongst other

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matters, the country introduced a range of legal measures aimed at securing consumer protection, and progress in this field has been acknowledged by the European Commission in its reports.1 The main legal provisions that deal with the protection of consumer interests with regard to advertising are contained in the Law on Consumer Protection and Trade Rules (LCPTR), the Law on Radio and Television (LRT), and the Law on Competition Protection (LCP). Those with relevance to the Zagorka case are considered briefly below. Advertisements containing discrimination, which could cause offence, are considered in the LCPTR under the title ‘‘dishonourable advertising.’’ The notion is not defined explicitly in the law, which only lists different cases in which advertisements would qualify as dishonourable. The working definition used by the Bulgarian public bodies involved in consumer protection is that a dishonourable advertisement is an advertisement whose contents or way of presentation is unacceptable for the prevailing part of society, or the society does not accept particular ideas, emotions, and suggestions to be used for commercial purposes.2 The provisions against misleading and dishonourable advertising are set out in Chapter 4 of the law. Art. 29 (2) of the law explicitly prohibits advertisements which are misleading or dishonourable, and Art. 30 (1) places the responsibility for misleading or dishonourable advertisement upon the advertiser and the advertising agency. According to Art. 30 (2) of the law, any interested person could lay a claim for the prohibition of an advertisement which they deem misleading or dishonourable and/or for the damages they have suffered as a result of this advertisement. When considering claims placed under Art. 30 (2), the court can order the misleading or dishonourable advertisement to be stopped, or to prohibit its dissemination before it has become public knowledge. The court can order the misleading or dishonourable advertisement to be withdrawn regardless of whether damages have been inflicted as a result of this advertisement, and whether this has been requested by the claimant. The provisions against offensive advertising are set out in Chapter 4, Section III titled ‘‘Dishonourable Advertising.’’ Amongst other stipulations dishonourable covers every advertisement which contains elements of discrimination regarding sex, race, religion, nationality, political convictions, age, physical or mental abilities, or which offends human dignity (Art. 34 (1)). The Law on Radio and Television (LRT), adopted in 1998, was amended in 2000 in order to include additional provisions for

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protecting consumers from dishonourable advertising. Two amendments in this law relevant to the present study are Point 6 in Art. 10 (1), which prohibits the broadcasting of programmes inciting hatred based on racial, sexual, religious, or national nature, and Art. 76. (2), which forbids the broadcasting of advertisements based on national, political, ethnic, religious, racial, sexual, and other discrimination. The regulation of advertising in Bulgaria also includes provisions contained in two further legal acts: The Law on Competition Protection and the Law on Tourism. These two legal acts deal with matters beyond discriminatory advertisements. The Law on Tourism, for example, ensures consumer protection against misleading information with regard to tourist services. The advertising-related provisions of the Law on Competition Protection deal with advertisements which compromise the good reputation of competitors, provide misleading information, advertisements of counterfeit goods or services, or such which would unfairly attract clients. As a beer advertisement lies at the centre of the present discussion, it may be worth noting that fierce competition in the sector has pushed breweries to go far in their efforts to catch the eye of the consumer. Each year the Bulgarian Commission for Protection of Competition considers about five cases involving breweries.3 The Commission for Consumer Protection is a specialised state organisation responsible for the protection of consumer interests, as well as the only governmental body overseeing the domestic market. The Commission was established in 1999 with the adoption of the LCPTR. It also has responsibilities with respect to the enforcement of the consumer protection clauses of the following legal acts: the Law on Tourism, the Law on Medicines and Pharmacies, and the Law on Tobacco and Tobacco Products. The Commission has broad consumer-related competences concerning matters such as dangerous goods, information provision, tourist services, rights to make claims, and misleading and offensive advertising messages. It is also in charge of the co-ordination of the activities of all governmental and municipal bodies and non-governmental organisations in the area of consumer protection. In cases of violation of the provisions of the LCPTR for misleading or dishonourable advertising, according to Art. 85 of this law the Commission has the right to fine the offenders and impose sanctions on sole entrepreneurs and corporate bodies within the range of 1,000–15,000 leva. The Commission conducts its activities with the help of nine regional branches. It acts proactively; in addition to

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dealing with consumer complaints, it also initiates regular inspections throughout the whole country. For the relatively short time of its existence, this governmental organisation has achieved tangible results, especially in the areas of consumer protection from dangerous goods and misleading advertising. For instance, during 2002 the Commission dealt with 79 cases of misleading and dishonourable advertising; in 52 of these cases it imposed sanctions on firms for misleading advertising, and in 2 other cases for dishonourable advertising.4 The National Council for Radio and Television (NCRT) was established as an independent specialised authority at the end of 1997, with a competence limited to the regulation of national radio and television. With the LRT passed at the end of 1998 the competences of the Council have been enlarged to include supervision of all electronic (public and commercial) operators. Advertising monitoring regarding compliance with the legal provisions for consumer protection is one of the Council’s core activities. According to Art. 126 (1) of the LRT the Council has the authority to impose sanctions on the media promulgating offensive advertisements, and the fine is between 2,000 and 15,000 leva. By virtue of an amendment of the LRT from 2001, the NCRT was succeeded by a new independent supervisory body – the Council for Electronic Media. The NCRT and its successor CEM have registered somewhat mixed results in their activities for protecting the interests of Bulgarian consumers. Limited resources have hampered the specialised monitoring of electronic media on a regional level; the monitoring mainly covers the media broadcasting from Sofia, and several regional radio and TV operators have been left without surveillance.5 Nevertheless, during 2000 – the year preceding the Zagorka case – the NCRT vetoed 56 violations of this law, of which 54 were related to advertising and sponsorship.6

THE ZAGORKA CASE

Zagorka is one of the most successful breweries in South-Eastern Europe. It produces a beer with the same name and supplies Amstel, Heineken, and Murphy’s to the Bulgarian market. It was privatised in October 1994 and at present 97.2% of the company is owned by Brewinvest – a Greek subsidiary of Heineken.7 The company is the market leader holding 26% of the beer market in 2002. The Zagorka

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brand is frequently recognised as the top-selling beer brand in the country. The brewery is the third largest spender on advertising in Bulgaria. Apart from other promotion initiatives, the company sponsors the Bulgarian Football Premiership, and the principal Bulgarian football trophy is known as the Zagorka Football Cup. In the spring of 2001 Zagorka launched a new TV advertisement for its prime brand. The content of the advertisement could be summarised as follows: A young man repairs an old Volkswagen Beetle. As the man lies beneath the car, two delicate female legs appear and elegantly kick the man’s spanner away. The man searches for his tool, but instead of the spanner he finds a bottle of beer. The scene is followed by another one in which the man and the woman are embracing, each with a bottle of beer in hand, and enjoying the drink. A male voiceover brings the message of the advertisement to the viewer: ‘‘What does a human being need? A new car, a nice woman and one good beer’’;8 the message is repeated and also briefly displayed as a written text. The advertisement was produced by Huts-Spot Thompson, a Greek-owned agency which has been recognised as one of the best advertising agencies in Bulgaria; in 2002 it won the competition for press advertisements among the advertising agencies in the country,9 and has been chosen by Brewinvest as its advertising agency in competition with eight others.10 The film of the advertisement, which bears the mark of the highest level of advertising professionalism, was produced in Greece with Bulgarian actors and directed by a Greek director. Huts-Spot Thompson asserted that the advertisement had been pre-tested and during the pre-tests had been well accepted by both sexes.11 In July 2001, in Plovdiv, the second largest city in Bulgaria, the first legal claim against the Zagorka brewery was launched. The claimant, who had initially insisted upon anonymity, was a 48-year old successful businesswoman who was in the past a national fencing champion. She did not have any affiliation with a feminist movement or women’s organisations in the country. Subsequent interviews in the media with her revealed a colourful and rather masculine personality. She summarised her position in a vocal statement: ‘‘I love beer, but I am a human being too!’’12 A record amount of 100,000 leva (approximately 51,000) was demanded as a compensation for the harm to the woman’s dignity. The claim was made under the LCPTR on grounds that the advertisement contained elements of sex discrimination and depicted the woman as an object of consumption. The

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claimant made a pledge to give the money to disadvantaged children if the claimed amount were awarded. Within days two more lawsuits were filed at the same city, one by a woman lawyer for 5,000 leva, and another one by the Plovdiv-based Consumer Centre for Information and Research for 10,000 leva.13 Shortly afterwards another five legal claims against the advertisement were launched in the capital Sofia by women linked with Association Animus – a NGO working against discrimination towards women and helping women and children who had suffered from violence. Before filing the lawsuits, the claimants from Animus tried to settle the matter out of court, but this was rejected by Zagorka.14 The claimants promised to donate the money to the association if their compensation claims were satisfied. The launch of legal claims against the Zagorka advertisement received considerable press coverage. The documented public reactions indicate that while some viewers perceived the advertisement as very offensive, others did not see in it any discrimination or offence at all. Interestingly, gender was not a major dividing line in the expressed opinions, and men were also amongst those who perceived the advertisement as offensive to women. After the first claim was launched, a Civic Committee was established in the city of Plovdiv in support of the claimant. The case prompted some commentators to note that in its previous advertisements Zagorka had also used women as ‘‘a beautiful accessory,’’15 and that ‘‘someone has underestimated the intellect of the Bulgarian and his/her self-confidence as a person with dignity. Or at least of the female part of the audience.’’16 The objectives of the lawsuits were a subject of speculations, initially that the first lawsuit was an advertising trick by the producer, and subsequently that the lawsuits had been initiated by competitors of Zagorka.17 Some concerns were also voiced in public that the campaign against Zagorka may provoke a wave of lawsuits by viewers offended by advertisements, who may discover opportunities for making easy profits under a more lax interpretation of the law.18 Zagorka chose not to comment on its advertisement until most of the legal cases were considered by the courts. However, after the launch of the first claim, the message of the voice-over was changed to: ‘‘What does a human being need? A comfortable home, pleasant company and one good beer.’’ Huts-Spot Thompson, the agency which produced the advertisement, defended its product claiming that it was aimed at provoking on a subconscious level the needs of their target audience, which included both men and women.19 The official position

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of Zagorka presented in the spring of 2003 was that for the company the term ‘‘human being’’ was a collective noun which included both sexes, and thus the advertisement did not contain elements of discrimination regarding sex, race, and religion.20

THE RESPONSE OF THE PUBLIC BODIES TO THE ZAGORKA CASE

The responsibility to determine whether the advertisement did have a sexist element or not fell on the abovementioned two public organisations – the specialised supervisory public body monitoring all programmes of the television stations in Bulgaria, at that time the National Council for Radio and Television, and the Commission for Consumer Protection at the Bulgarian Ministry of the Economy. The official position of the National Council for Radio and Television (NCRT) with respect to this particular case was: The slogan ‘‘What does a human being need? A new car, a nice woman and one good beer’’ in the advertisement of ‘‘Zagorka’’ beer takes the woman out of the notion of human being and puts her amongst male possessions, which could be interpreted as an element of sex discrimination and would fall under the sanctions of Art. 76 of the LRT.21

The Council, however, refrained from imposing any sanctions on the broadcasting of the advertisement, because of the playful poetics and ambivalence of messages typical in advertising. In parallel to this, the NCRT announced that it would start specialised monitoring of advertisements in the electronic media to secure compliance with the requirements of the LRT regarding discriminatory advertising.22 In a subsequent interview, the chairman of the NCRT stated that despite the fact that the majority of the experts at the NCRT were women, none of them had reacted so far.23 The Commission for Consumer Protection also did not condemn Zagorka. The Deputy Head of the Commission, a woman, stated publicly: ‘‘As a consumer I would not be offended by an advertisement of the kind of Zagorka.’’24 To place this in context it is worth mentioning that at the time when the lawsuits against Zagorka were filed, the Commission for Consumer Protection had already instigated a legal action against the phone cards company Mobika for the use of print advertisements depicting naked female bodies with their breasts partially covered by the slogan ‘‘Which size do you prefer?’’ The case was built on the same clauses of the LCPTR against discriminatory

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advertising under which the Zagorka lawsuits were filed. Hitherto, the Commission had also tackled multiple cases of misleading advertising, which frequently posed material and health risks to consumers. However, while in the case of Mobika the Commission decided that the advertisement was offensive to women’s dignity,25 as it is evident from the above statement, it genuinely did not see any problem in the case of Zagorka.

WHAT’S IN A WORD?

The Zagorka advertisement looks remarkably innocuous. There is no female nudity in it, no explicit sexual references, and no suggestive dialogue. Both the man and the woman in the picture drink beer, therefore, as far as the drinking of beer is concerned, the woman is not discriminated against. Moreover, she is portrayed as a confident partner encouraging her man to take a break from the unpleasant activity in which he is involved. The picture was not challenged by those who were offended by the Zagorka advertisement. The controversy of this advertisement emanates from the text of the male voice-over, briefly displayed as a written text as well. One aspect of this advertisement, which apparently caused offence, was that in the text of the voice-over the woman was placed between two objects of consumption – the car and the beer. Those who were offended by the advertisement perceived this as the woman herself being treated as a consumption object. Some were also offended by the adjective used to describe the woman – mila (nice/agreeable), as the word might imply submissiveness of the woman to man’s whims and wishes. Linguists commenting on the case asserted that if the woman were depicted as beautiful and smart, no one would have been offended, but mila applies to a woman who has no other qualities.26 The major point of offence, however, appears to have been the use of the word chovek (‘‘human being’’ in Bulgarian) in a combination with ‘‘a woman’’ in the voice-over. Those who were offended by the advertisement saw the woman being opposed to the human being, and thereby excluded from the human category, reduced to something inferior. What is observed here is a semantic phenomenon which has not been given much consideration prior to the Zagorka case. Apart from ‘‘a human being’’ the word chovek could be translated in English also as ‘‘a person,’’ ‘‘a human,’’ or ‘‘a being.’’ However, one may

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occasionally observe in the Bulgarian language a semantic conversion of the word chovek from denoting human being to denoting a male human being.27 This semantic conversion is not universally present in the contemporary Bulgarian language; the use of the word as a synonym of ‘‘man’’ is limited to the colloquial language of a part of the Bulgarian population, and may be related to the gender relations within this population. But the semantic conversion appears to have received some legitimisation in the past. Merdjanska (1997) for example, cites the Dictionary of Synonyms in the Bulgarian Language (1980), where the synonyms for ‘‘man’’ were (1) ‘‘a human being,’’ and (2) ‘‘husband,’’ whereas the only synonym for the word ‘‘woman’’ was ‘‘wife.’’ The English-Bulgarian Dictionary (1985) also reflects this conversion. For example, ‘‘man’’ is translated as (1) ‘‘a human being,’’ (2) ‘‘human kind,’’ (3) ‘‘human,’’ and (4) ‘‘muzh,’’ i.e., ‘‘man’’ in the sense of an adult male human being. By contrast, ‘‘woman’’ is translated as zhena, i.e., an adult female human being only. Both dictionaries are published by the prestigious Bulgarian Academy of Sciences. Advertisers frequently make use of well known phrases, including expressions met in the colloquial language. The first part of the Zagorka advertisement offers one such instance: ‘‘What does a human being need?’’ An advertising expert asserted that the text of the voiceover has been inspired by one of the versions of this widespread phrase: ‘‘What does a human being need? A piece of bread, a bottle of whisky and one large white yacht.’’28 The Bulgarian word chovek, however, is also used in sexist jokes which play with the meaning of this word. By using chovek instead of ‘‘man’’ in combination with the word ‘‘woman,’’ these jokes make a claim for male superiority and female inferiority/inadequacy, respectively. These sexist jokes are appealing to, and are circulated among, a particular group of men in the country who espouse strong patriarchal views. The use of the word chovek in the advertisement’s voice-over provoked associations with such sexist jokes and part of the Bulgarian public ‘‘decoded’’ a sexist meaning in this advertisement. The case prompted the recollection of some of these jokes in the media: They sent into space first a dog, then a woman, and at last a human being.29 A shepherd was asked: ‘‘Have you seen a couple passing by?’’ He replied: ‘‘No. A while ago a human being and a woman passed by, but I have not seen a couple.’’30

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Along these lines, it has been asserted that the experts behind the Zagorka advertisement have taken into account the fact that the most loyal beer consumers are among that part of the male population to whom these sexist jokes are appealing, and that the advertisement was specifically targeted at this market segment.31

THE RULINGS OF THE COURTS OF FIRST INSTANCE

The claims against the Zagorka advertisement were made on the basis of Art. 34 of the LCPTR, which deals with dishonourable advertising, and Arts. 10 and 76 of the LRT, which prohibit the broadcasting of programmes and advertisements based on national, ethnic, religious, racial, sexual, or other discrimination. The claims also alleged that the Zagorka advertisement had contradicted Art. 6 of the Bulgarian Constitution stipulating that all people have equal rights and no restrictions are allowed on the basis of nationality, race, ethnic and political belonging, religion, sex, descent, education, beliefs, personal and social position, or property situation. The claimants perceived the broadcasted advertisement as instigating negative attitudes towards women and felt discriminated against by it. They claimed that the advertisement made them feel inferior, as they had perceived the text of the voice-over as a message that women are not human beings but only inanimate objects, such as the beer and the car, and their only purpose was to bring pleasure to the ‘‘man-human being.’’ In addition to the claims that the Zagorka advertisement had offended the dignity of women, the last five claimants associated with Association Animus also brought arguments related to their professional activity. In particular, they claimed that the message of the advertisement had a disruptive effect on their work, which consisted of giving courage to women who have suffered from violence and of helping them to repair their self-esteem.32 As one of them stated, During the last 6 years I have been working on women’s problems in Bulgaria [. . .]. I felt devalued and discriminated against after the broadcasting of the advertisement of Zagorka. Television has an influence on all people – men and women, and a part of my work during these years – [to make] women feel like human beings, was destroyed with a single stroke.33

These claimants also alleged that they had sustained non-material damage from their exposure to the advertisement. They claimed that

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they were deeply affected by its aggressive character and as a result suffered from stress, insomnia, depression, and low self-esteem. The defence of Zagorka argued that in the particular advertisement there is no discriminatory attitude towards women – it neither affects the legal status of the woman, nor advocates the idea of superiority or inferiority of one of the sexes; it does not lead to restriction of women’s rights, nor does it advocate such restrictions. If the statement were ‘‘Forbidden for women’’ or ‘‘For men only,’’ this would have restricted women’s rights to consume the advertised product, but this was not the case. It was also maintained that there was no opposition of the words ‘‘human being’’ and ‘‘woman,’’ and their use was not related to any neglect, rejection, exclusion, or underestimation. The defence further asserted that the advertisement was aimed at instilling mutual respect between the woman and the man.34 The use of the phrase mila zhena (nice woman) was an expression of an element of emotional human needs, namely, the need for harmony in the relationships between partners. The strategy of the advertising campaign had been to position the Zagorka beer amongst material and spiritual human values, which have different priorities. During one of the court sessions the lawyers of Zagorka also compared the textual element of the advertisement with the phrase of Napoleon ‘‘Money, wine and women’’ which they argued enumerated human needs and against which no-one had protested.35 The defence was also built on the argument that there was no proof of a causal link between the broadcasting of the advertisement and any concrete damage suffered by the claimants. Legal cases instigated by private parties suing for damages are in principle different from legal cases initiated by public bodies acting in the public interest. In the above mentioned Mobika legal case, brought by the Commission for Consumer Protection, the central point of the claim was that the exposed female torso, which was used as an eyecatcher only, damaged the woman’s dignity, and that the advertisement could deform the value system of the young generation. Arguments about the social consequences of advertising were not part of the Zagorka cases. If an individual wants to launch a claim against an advertisement because of the offence it has caused, he or she could do so under Bulgarian law with a reference to Arts. 45 and 49 of the Law on Obligations and Contracts. According to Art. 45 of this law, every person should rectify the damage caused through their own fault to another person. Art. 49 stipulates that ‘‘one who has assigned a job

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to another shall be liable for the damage caused by the latter in, or in connection with, the performance thereof.’’ According to Art. 51 of the law, compensation should be paid for all damages that are a direct and immediate result of the tort. With reference to these legal provisions the claimant is obliged to prove that damage has been suffered and that this damage is a direct consequence of exposure to the advertisement in question. By March 2004 all eight cases had been considered by the courts, and some of them had already been referred to the Court of Appeal. One of the claims in Sofia was partially satisfied, although the compensation awarded was limited to one-tenth of the claimed amount. Seven of the claims were rejected. Three out of the five Sofia-based cases were considered by women judges. The courts were confronted with two major issues: first, they had to decide if the advertisement in question contained any element of sexual discrimination or any suggestion of a negative attitude towards the woman; and second, they had to establish whether the claimants had suffered non-material damage from exposure to the advertisement. In order to establish whether the claimants had sustained such damage, the courts in Sofia ordered psychiatric evaluations.36 Witnesses were also called to give evidence about the effects of the advertisement on the claimants, and the resulting changes in their behaviour. The courts also considered the opinions of academic lawyers and the position of the NCRT on the case. With regard to the first issue, most of the courts accepted the defence’s arguments that there was no sex discrimination. In some of the cases where the claims were rejected, the semantic conversion of the word chovek was recognised, and the courts accepted that the message of the advertisement was addressed to the man as the active consumer of the beer. The judges who rejected the claims were satisfied that the advertisement did not discriminate against the woman, as she was portrayed as a person with dignity, an active participant whose role was not denigrated in any way. They noted that the overall tone of advertisement was positive, and that it reflected typical Bulgarian values. The claim that the voice-over carried a discriminatory meaning was rejected as subjective interpretation, extracting one element out of the context of the advertisement as a whole. With regard to the second issue, the majority of the courts accepted the psychiatric evaluations, but took the view that the observed symptoms had been temporary, and that ultimately there was no damage worthy of awarding

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compensation. In these cases the courts decided that a causal link between the broadcasting of the advertisement and observed negative psychological changes could not be established. In the only case decided in favour of the claimant, the court accepted that the advertisement differentiated between the ‘‘man-human being’’ and the ‘‘nice woman,’’ and excluded the woman from the notion of human being, which led to her being degraded to an object of mass consumption. The judge, a woman, accepted that the claimant had suffered from stress, depression, and anxiety, and that her dignity had been offended. She also acknowledged that the advertisement had a negative impact on the personal life of the claimant; it had affected her relationships and she felt depressed and isolated. However, the most important factor for this decision proved to be the use of the word ‘‘human being’’ in the text of the voice-over. Rejecting the semantic conversion of the word chovek discussed above, the judge stated: It would have been a different case if the text of the dispute were: ‘‘What does the man need? A new car, a nice woman, and one good beer’’; then the advertisement would have been based on the objective differences between the two sexes with elements of humour and teasing.37

Bulgarian law contains explicit prohibition of sex-based discrimination, but the law does not define what ‘‘discrimination’’ means. In some of the legal cases the meaning of ‘‘discrimination,’’ and various sources for defining this notion were also discussed. In particular, a reference was made to the recently adopted Bulgarian Law for Protection Against Discrimination (in force from 1 January 2004), and in particular Art. 37 of this law, which forbids a refusal to provide goods and services, or the provision of lower quality goods and services, on the basis of the criteria defining discrimination, namely in this case, on a sex criterion. The judge in the only case decided in favour of the claimant referred in her decision to international conventions against discrimination (gender-based and work discrimination), which are ratified by Bulgaria. According to these conventions, the Zagorka advertisement contained an element of discrimination, by excluding the woman from humankind, and putting her between the new car and the good beer in the value system of the ‘‘man-human being.’’ Bulgarian law does not rely on precedent, and the success of one of the claims in no way binds other judges’ decisions on other claims. In another legal case in which the claim was rejected, another woman

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judge, though acknowledging that the advertisement did cause some stress and reduced the claimant’s abilities for concentration in her work, rejected the claim. The judge argued that in the advertisement ‘‘human strivings are reduced to elementary needs, amongst which there are no spiritual ones. In this sense, anyone rejecting these consumerist values could be offended.’’38 In the view of the judge, however, this did not constitute a crime; moreover the claimant was not obliged to watch the advertisement and could have switched off her TV set. The judge was satisfied that the active consumer of the advertised product is the man, who feels comfortable when he is in the company of a woman, and has his preferred drink at hand; this however, does not constitute discrimination. Amongst the arguments serving as a basis for this decision was the expert opinion of a psychologist that the claimant, who was also a professor at an American university, ‘‘had inadequate expectations as she did not take into account the differences between the American and Bulgarian cultures.’’39

CONCLUSIONS

The court rulings reported in this article reveal a number of legal and policy-related issues. The discussion of the recent rulings of the courts of first instance on the case demonstrates the challenges to the enforcement of legal provisions against offensive advertising. The Bulgarian courts were confronted with obvious difficulties when deciding whether the advertisement was in breach of the law or not. The Zagorka case illustrates how thin the line of demarcation between the ‘‘offensive’’ and the ‘‘non-offensive’’ in advertising could be; what is offensive to some individuals may not be offensive to others. One of the issues that surfaces from the discussion is whether it is possible to have private enforcement of the legal clauses aimed at preventing offensive advertising. As demonstrated by the Zagorka case, lawsuits filed by private parties are decided on the basis of proven actual harm within the limits of the existing law, and social considerations play no part in the courts’ decisions. The cases were essentially transformed in the courtroom from cases of offensive advertising into cases of nonmaterial damages. The intangible character of the latter, however, made it especially difficult to invoke the relevant legal clauses. The examined cases show that it may be hard to prove a causal link between an exposure to a particular advertisement and non-material

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damage suffered by the claimants, such as negative effects upon their emotional life. The available information indicates that Bulgaria has put in place an active public policy to provide consumer protection from misleading and dishonourable advertising. Bulgarian regulatory organisations, albeit relatively new institutions, have quickly made their mark by intervening on multiple occasions. Yet in the Zagorka case they did not condemn the brewery, and their reactions may well be explained by the ambivalent character of the advertisement. The Bulgarian institution with prime responsibility for supervising TV advertising – the NCRT – acknowledged that the text of the voice-over could be interpreted as discriminatory to women, but abstained from imposing any sanctions, referring to the ambivalent nature of the advertisement. The Council’s decision points towards an important impediment for enforcing the laws on consumer protection related to the creative nature of advertising and the subtleties of the conveyed messages. A relevant question concerns the character of the advertisement. Was this advertisement a case of ‘‘benevolent sexism,’’ a notion used by Glick and Fiske (1996) to describe attitudes that are sexist in terms of viewing women stereotypically and in restricted roles, but that are subjectively positive in tone and also tend to elicit behaviour typically categorised as pro-social or intimacy-seeking, or was this advertisement an instance of harmless humour? Answers to this question depend on one’s value system, views on gender relations, and interpretation of the advertisement’s text and picture. In this respect, the Zagorka case is reminiscent of another case discussed in this journal – the case of the Panu paint advertisement analysed by Peltonen (1995). In a similar fashion, not everybody was offended and public reactions were divided; some perceived it as offensive to women, others saw it as harmless amusement. However, while the Finnish public authorities acted against the Panu advertisement and the Finnish Market Court endorsed their case, the public bodies in Bulgaria did not condemn the advertisement of Zagorka, and all but one of the claims against it were rejected. Nevertheless, the case brought about an immediate effect on Bulgarian public policy: it prompted the NCRT to start specialised monitoring of electronic media for discriminatory advertisements. The alignment of women with inanimate objects of consumption was not given much weight in the court decisions. In the nascent capitalism of Eastern Europe materialism runs high (Ger & Belk,

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1996), and the cases against the Zagorka advertisement were decided in accordance with the prevailing social values. This is evident from the court decision which made a reference to ‘‘consumerist values.’’ From the sole decision in favour of the claimant, it may well be argued that the major element of offence in the case could be reduced to the use of a single word – chovek (human being). However, the semantic conversion discussed above did not persuade the majority of the judges to accept that the advertisement was offensive, just as prior to this it proved to be insufficient for the regulators to step in and censure the brewery. The Zagorka case provides support for the argument of Sverdrup and Stø (1992) that the more subtle the aspects of possible sex discrimination, the more difficult it becomes to determine what message sender wants to convey. In such instances interpretation easily becomes dominated by subjective perceptions. In the Zagorka case, the meaning of the voice-over text essentially became a matter of personal opinion. While the Zagorka advertisement reflected specific cultural values shared by part of Bulgarian society and used language popular amongst this part of the population, it clearly collided with the values and the language of another part of society. The lawsuits kept the matter on the social agenda for some time. The reactions of the public, as evidenced in the media, were extremely polarised, ranging from full support to full denouncing of the legal cases against the advertisement. These diverse responses may well be explained by the cultural mosaic of Bulgarian society, and the internalisation of different gender roles as models guiding individuals’ behaviour. It is of note that some of those who reacted against the advertisement associated its alleged sexism with a non-European cultural tradition. The case has prompted some reflection and self-appraisal among Bulgarians. One of the likely social outcomes of this high profile case is increased public awareness of gender issues. The raised consciousness of gender issues in turn is likely to have long-term implications for the advertising industry and public policy concerning advertising practices in the future.

NOTES 1 See, for example, Commission Report [COM(1999) 501] of 1999 and Commission Report [COM(2002) 700] of 2002 (http://europa.eu.int/scadplus/leg/en/lvb/e16101.htm).

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Commission for Consumer Protection (www.ktzp.bg). ‘‘The brewers – frequent clients of the CPC,’’ Pari, 14 August 2003. 4 Information from the Commission for Consumer Protection. 5 ‘‘Analyses: CEM – hundred days later,’’ 20 November 2003, http://www.cem.bg (accessed 4 July 2004). 6 Annual Report of the National Council for Radio and Television 2000, Bulletin of NCRT, No. 2–3, April–September 2001. 7 ‘‘Zagorka a.d. invested over 5 million leva,’’ Pari, 18 July 2001. 8 In Bulgarian: ‘‘Kakvo mu tryabva na chovek? Nova kola, mila zhena i edna dobra bira’’. 9 ‘‘McCann Erikson is the advertising agency of the year,’’ Pari, 3 June 2002. 10 ‘‘A claim to Zagorka for 100 thousand leva for an offensive advertisement,’’ Banker, 21 July 2001. 11 ‘‘An advertisement of ‘Zagorka’ woke up the feminists,’’ Capital, 18–24 August 2001. 12 ‘‘I love beer, but I am a human being too!,’’ 24 Hours, 18 August 2001. 13 ‘‘The case against ‘Zagorka’ will be considered in Stara Zagora,’’ Sega, 19 October 2001. 14 ‘‘An advertisement of ‘Zagorka’ woke up the feminists,’’ Capital, 18–24 August 2001. 15 ‘‘The televisions received seven million leva from beer advertising,’’ Dnevnik, 23 August 2001. 16 ‘‘The art of advertising,’’ Monitor, No. 891, 29 August 2001. 17 See ‘‘A conspiracy or a revolt of the women?’’ Trud, 13 August 2001, and ‘‘The televisions received seven million leva from beer advertising,’’ Dnevnik, 23 August 2001. 18 ‘‘An advertisement of ‘Zagorka’ woke up the feminists,’’ Capital, 18–24 August 2001. 19 ‘‘An advertisement of ‘Zagorka’ woke up the feminists,’’ Capital, 18–24 August 2001. 20 Official statement of Zagorka AD, press conference on 15 April 2003, Sofia. 21 Official position of the NCRT. 22 Official position of the NCRT. 23 ‘‘Everything is reduced to the fact that Christ is a man,’’ Sega, 16 August 2001. 24 ‘‘Will the court prove that the woman is a human being,’’ 24 Hours, 21 July 2001. 25 ‘‘Will the court prove that the woman is a human being,’’ 24 Hours, 21 July 2001. 26 ‘‘Will the court prove that the woman is a human being,’’ 24 Hours, 21 July 2001. 27 We are grateful to Theodore Christchev, a Bulgarian linguist and a member of the Oxford Medieval Latin Dictionary Team at Oxford University, for his insights on this point. 28 ‘‘There is no hidden motive,’’ 24 Hours, 21 July 2001. 29 ‘‘The art of advertising,’’ Monitor, No. 891, 29 August 2001. 30 ‘‘The woman is not a human being, if she is not a man,’’ Media World, June 2001. 31 See ‘‘The art of advertising,’’ Monitor, No. 891, 29 August 2001. 32 ‘‘The case ‘Zagorka’ – a precedent in our judicial practice,’’ Pari, 2 April 2002. 33 ‘‘The lawsuits against Zagorka became eight,’’ Trud, 13 August 2001. 34 ‘‘Zagorka won the 6th legal case against feminists,’’ Sega, 15 April 2003. 35 ‘‘Zagorka won legal cases for a scandalous advertisement,’’ Dnevnik, 28 October 2002. 36 ‘‘Psychiatrists and professors will give opinions on the ÔZagorka’ advertisement,’’ Dnevnik, 11 March 2002. 37 ‘‘The court got confused by one good beer,’’ Dnevnik, 8 April 2003. 38 ‘‘Zagorka won and lost a legal case for a TV advertisement,’’ Dnevnik, 6 April 2003. 3

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See ‘‘The court got confused by one good beer,’’ Dnevnik, 8 April 2003.

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THE AUTHORS Elena Millan is Lecturer in Business Management at the Department of Accounting, Finance and Management, University of Essex, Wivenhoe Park, Colchester, Essex, CO4 3SQ, United Kingdom. Fax: +44 (0)1206 873 429; e-mail: [email protected]. Richard Elliott is Professor of Marketing and Consumer Research at Warwick Business School, University of Warwick, Coventry CV4 7AL, United Kingdom. Fax: +44 (0)2476 524 628; e-mail: [email protected].