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Statement made by the Special Rapporteur on Cultural Rights at the 69th session of the General Assembly

New York, 28 October 2014

Honourable Chair, Excellencies, distinguished delegates, ladies and gentlemen;

It is with great pleasure that I present my report to the 69th session of the General Assembly. My report this year addresses the impact that 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 (A/69286).

I have chosen this subject as a continuation of one of my key interrogations as Special Rapporteur in the field of cultural rights, regarding the dominance of certain specific narratives over others in our societies, in particular in public spaces, and the link between power and culture.

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, 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, social behaviour and beauty canons.

Innumerable factors influence people’s choices and philosophies. We must recognize that people have their own agency and critical resistance, and trying to convince someone is not an encroachment on the right to freedom of thought and opinion, and in fact supports democratic debate. I am of the view however that the increasingly blurred line between commercial advertising and other content, the myriad advertisements and marketing communications people receive daily, the dissemination of such communications through a large variety of media used in a systematic and integrated way and the resort to techniques aimed at circumventing individual rational decision-making raise serious concern.

Therefore my concern is not that change occurs in cultural practices and world views, but rather relates to the disproportionate and omnipresent nature of commercial advertising and marketing in our societies, which contribute to shifting practices towards consumption and uniformity.

It is time to acknowledge this phenomenon and to investigate thoroughly the impact on cultural diversity and the right of people to choose their own ways of life. I am convinced that States wishing to protect cultural diversity need to protect their societies from undue levels of commercial advertising and marketing while increasing the space for not-for-profit expressions. I wish to stress, in this regard, that I am of the view that commercial messaging may be granted less protection than other forms of speech under article 19 of the International Covenant on Civil and Political Rights relating to the rights of people to freedom of opinion and expression.

Ladies and Gentlemen,

In my report I have pointed out various issues of concern. As the time granted to me at this podium does not allow me to stress them all, I have chosen to highlight only two of them, which I believe illustrate well contemporary trends.

The first one relates to the techniques developed by advertisers. Increasingly sophisticated strategies result in a progressive blurring of lines between advertising and other content, especially in the areas of culture and education. While 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, not all countries have taken that step.

In this regard, neuromarketing, or the use of advances in the neurosciences to develop commercial advertising and marketing strategies, but also a myriad of other techniques, such as embedded advertising, or the development of advergames, must be questioned. 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 well as their rights to education and to participate in cultural life.

The second example relates to the growing presence of advertising in schools. This is well documented, and in the course of my research for this report, I must confess I was astonished by the sheer number of examples brought to my attention and by the vast array of techniques advertisers use to enter schools: through school materials, including textbooks; through sponsored lessons or activities; through branded material disseminated on school premises, school buses and sports fields; school fund-raising strategies encouraging families to enter into commercial relations with companies that donate to schools; or through the recruitment of schoolchildren to serve as brand ambassadors.
I consider my recommendation to ban all commercial advertising and marketing in public and private schools and to ensure that curricula are independent from commercial interests as one of my most important recommendations. Schools constitute a distinct cultural space, deserving special protection from commercial influence. I also recommend to 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 to ban the practice of child brand ambassadors

Ladies and gentlemen,

Many States have adopted laws, but commercial advertising and marketing remains mostly self-regulated. This situation is unsatisfactory, and I call upon States to adopt legislation on commercial advertising and marketing geared towards reducing the level of commercial advertising and marketing that people receive daily. State legislation must be based on the fundamental principle that commercial advertising and marketing should always be clearly identifiable and distinguishable from other content on all media and in all places.

States have a particular responsibility in ensuring that public space remains a sphere for deliberation, cultural exchange, social cohesiveness and diversity. I think it is important to identify spaces that, in addition to private and public schools, should be completely or especially protected from commercial advertising. I have in mind, in particular, kindergartens, universities, hospitals, cemeteries, parks, sports facilities and playgrounds, as well as cultural heritage sites and cultural institutions such as museums. At stake is our ability to relate to our environment, to our urban and rural landscapes; our freedom of thought; and our cultural diversity.

Let me conclude by again stressing the issue of power and culture. Various examples demonstrate that the dominance of narratives in the public space depends on who holds the power. I think it is quite significant, for example, that in various countries, civil society organizations denouncing excessive advertising and illegal billboards have been largely ignored and some have found themselves facing defamation lawsuits by advertising companies. They do not enjoy the same supportive response from authorities as advertising companies do when complaining that their billboards have been vandalized. I am also concerned by the sharp disparity between the paucity of action and enabling mechanisms for removing illegal billboards compared with the far greater resources devoted to removing illegal graffiti, with sanctions in the form of fines and even jail sentences. We need to carefully consider what space is given to artistic expressions compared to advertising and ensure an appropriate balance that promotes the human rights, in particular cultural rights of all.

I thank you very much.