From most people’s perspectives, law involves writing a will and buying a house, little more. The caselaw doesn’t touch ordinary people’s lives or make up the stuff of law in practice.
Comparative perspective from big countries. China: very highly regulated; India and US: moderate; Brazil: low. Primary methods of regulation are very different. China: government. India: cultural taboos. US: Industry tries very hard to preempt government regulation through various self-regulatory bodies, especially for TV ads, staying one step ahead of regulation. Brazil: the ad agency decides what to do.
Pepsi makes a pattern ad they’d like to use all over the world, but will have to be reshot in various ways for local regulations and ambiance. He showed a popular Pepsi ad with Michael J. Fox; Chinese censors didn’t like it because it showed a number of inappropriate behaviors—running down a fire escape in a nonemergency situation, crossing in the middle of the street, gangs in the city, etc. Chinese version: similar dialogue, very different behavior—he crosses at a crosswalk! Chinese regulators didn’t want to show antisocial behavior. Not an isolated instance.
India: (incidentally, here’s the Indian version of that ad—worth a look, especially in light of the Chinese changes) A private company started competing with the government in condom distribution; people didn’t like how thick the government issue condom was, though it was promoted heavily for population control. Chose the name Kamasutra to emphasize its greater sensuality. Can’t show men and women kissing in movies or on stage; this is a huge taboo. Nor can a man touch a woman’s hips or most parts of her body in an ad. Ad agency works within the context of taboos. The condom ad included a prominent framed picture of the couple—showing that they weren’t engaged in casual sex. Ads can be erotic—he showed a condom ad that probably couldn’t be exceeded in the US—and yet there are still taboos.
Brazil: Creative strategy has become divorced from the product—lost the purpose of selling stuff. “Ghost ad”: made specifically to enter into international competition, but don’t show on TV or in magazines. There’s just no regulation. Ketchup ad: won a competition, didn’t show at home.
O'Barr then showed an ad in which boys repeatedly ogled and spied on women, to advertise candy—forget government regulators in the US; this wouldn’t make it past the network censors for concerns over sexualizing kids, objectifying women, general creepiness.
Ramsey: How long does ad approval take in China?
A: Several months. Tedious. Many are rejected and need to be replaced/remade. China has a good side: what the government is requiring is for advertisers to think about whether the values promoted in ads are antisocial and thus contrary to the population’s larger interests. He wishes we could do some of that in the US.
Bradford: OK, so what about niche marketing to homosexuals in China?
A: Wouldn’t get talked about at all: standardization of the ideal family. Same thing with any totalitarian regime: they have an idea of what the images ought to be and enforce them heavily. Also doesn’t allow regional minorities to appear—multiculturalism doesn’t show up in China.
Bartholomew: former student did a presentation on Chinese ads. An ad in which a boy bought two Cokes so that he could stand on them and get tall enough to press the Pepsi button, then abandoning the Cokes, would never be allowed.
A: That’s because comparative ads aren’t allowed. You can’t say your car is best because everyone knows the other brands work fine.
He thinks Brazilian ads are exceptionally cool, and Chinese ads are fascinating because the ads thrive in the midst of this totalitarian state. And why can’t we advertise condoms in this country?
Stauffer: That Brazilian ad is really disturbing, particularly in dialogue with the papers from earlier in the day about the recruitment of women’s bodies to use sales—the social education that boys are supposed to be voyeurs, stick a mirror under the teacher’s dress, etc. Unlikely to be ads in which little girls fantasize about men’s bodies. That doesn’t have the same social meaning.
A: Note that these things are all competing to be the standard for global advertising. The US doesn’t come out very well. US ads are no-nonsense, WYSIWYG, not beautiful, not creative, not generalizable because the American population looks different from every other population—the set of people chosen to represent multiculturalism is unrepresentative everywhere else (blacks, Hispanics, Asians along with whites); too many facts/reasons compared to French/Japanese ads. We’d be wise as Americans to realize how very culturally specific these issues we’ve been talking about today are.
There’s no pretense of multiculturalism in ads elsewhere—they don’t bother to put Muslims in ads in France. American racial codes are different—a code for communicating sensitivity to diversity that is uniquely American, so we show three kids brushing their teeth, one white, one Hispanic, one Asian—an improbable social situation created to show multiculturalism. But there are a small number of niche markets that warrant special treatment in the US—Hispanic, African-American, gay/lesbian; now Asian, though ads tend to make them honorary whites.
Daniel Horowitz, Smith College, David Riesman: From Law to Social Criticism
Lawyer who made his mark as a sociologist in The Lonely Crowd; turned his back on the law. Buffalo was actually critical to his evolution; he came to the law school when the dean was trying to turn it into a national law school, and began to build his career as a sociologist, pushing the boundaries of what was proper to study. He was interested in empirical data, using it to examine the law of finders. Riesman worried about defamation of Jews in Europe. Tried to deal with that in law review articles about the conflict between defamation and free speech. What linked his legal training with his work in sociology? The Lonely Crowd is not obviously a book written by a lawyer.
Horowitz proposes: the link is concern for the conditions under which democracy can continue to flourish under adverse conditions. He began with the problem of political apathy, and tried to figure out how to preserve individual autonomy from attack by totalitarianism in Europe and consumer culture in the US. Often misread as pessimistic.
At several points, he focused on advertising, suggesting that educating consumers might promote autonomy. Wanted “leisure counselors” to educate Americans, especially children, how to consumer, and wanted market research to uncover consumer desires and meet them. Understood the individualizing potentials of mass media, contrary to Adorno and the Frankfurt School, and tried to understand how consumer culture individualizes people and provides a source of resistance to the pressure of the peer group. Feedback and the importance of consumers talking back to corporations and advertisements. The other-directed personality promises flexibility and self-expression, and ads/market research could help Americans resist conformity and seek autonomy. He was countering the pessimism of the Frankfurt School.
Bartholomew: What episodes from popular culture did he find hopeful?
A: Later essays, yes. Charlie Chaplin, American jazz are commonly cited by writers of this bent. Women & sex in The Lonely Crowd—he moves towards women’s liberation through sexual experience: women are acting in their homes more like courtesans.
Alberto Salazar, York University: Consumer Counter-Advertising Law and Corporate Social Responsibility in Canada
In Canada, the law chills consumer expression/counteradvertising, which prevents democratic demate and social deconstruction and reconstruction of the commodification of life. McDonald’s litigated in the UK over the use of “McDollars, McGreeedy, McCancer, McMurder, McDisease” for 6 years, finally losing at the European Human Rights Commission. Court said: lack of government aid to consumers to prove the accuracy of their criticism against a corporation is a violation of their freedom of expression.
In Canada, defamation law is considered private. Defenses are costly, and there’s no anti-SLAPP legislation. Most people are sympathetic to consumer expression and yet the law doesn’t facilitate it.
Example of problems: discourse on obesity, anorexia, healthy eating. Change in law could stimulate behavioral change, past the “public interest responsible journalism defence,” which is not clearly available to ordinary nonjournalist citizens.
Ramsey: Do firms use TM law as well?
A: Hasn’t studied that.
Ramsey: How rigid is the standard? Negligence?
A: No, truth. Even nonnegligent falsehood leads to liability, and you have to prove truth.
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