Mandatory labelling of retouched images in the pipeline
During the summer, the Danish Ministry of Industry, Business and Financial Affairs launched a Bill for consultation that introduces mandatory labelling of retouched commercial photos (requesting comments by 18 August 2022). The Bill is intended, inter alia, to counteract the negative impact of unrealistic advertising images on children and young people. If adopted, the Act is expected to enter into force on 1 July 2023.
Which editing will require labelling?
The wording of the new section 11c of the Danish Marketing Practices Act refers to “retouched advertising photos whereby the shape, size or skin of the body is changed”, i.e. changes that leave a false physical appearance. Examples are photos in which muscles have been enlarged, the waist has been diminished, the neck or the legs have been made longer, the face or nose has been narrowed or broadened, and the eyes or lips have been enlarged or diminished. It is further stated specifically in the explanatory notes that face and head are subject to the scope of the new section 11c. Thus, digital alterations of e.g. a person's nose or forehead will require labelling, whereas removal of red eyes and alterations of eyes or hair colour will be excluded from the labelling requirement.
It also appears that influencers who directly or indirectly receive payment for a product fall within the scope of the Bill. The labelling requirement will therefore also apply where retouched images are used in the promotion of a new product.
In practice, it is proposed to introduce a common national label.
Failure to label will be punishable
Failure to label will be punishable by a fine. Ultimately, it will be for the Consumer Ombudsman as the competent supervisory authority to assess if a commercial photo has been retouched and should therefore be labelled. For this purpose, the Consumer Ombudsman may demand to see the original photo to make a comparison.
In assessing the level of the fine, the gravity of the violation and the business operator’s revenue will be taken into account in line with the general principles of the Marketing Practices Act. In the case of businesses, the level of the fine will be set according to the updated fining model (effective 1 January 2022) which divides businesses/legal entities into eight categories depending on their size (measured by revenue) and which provides for three fine levels for each category.
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