Legislators propose targeting commercial image manipulation in Denmark

Danish influencers are on high alert following proposed changes to the Marketing Act that would make it mandatory to label photographs in advertisements and commercials that have been digitally manipulated.

Enhanced, modified and manipulated photos are widely used across social media and depict an almost constant stream of celebrities, many of whom are endorsing the next beauty or fashion product. Some influencers simply choose to display their exclusive lives on Instagram, often displaying manipulated images of flawless, tanned and wrinkle-free skin on tropical beaches.

This “fabulous” trend should end, according to Scandinavian lawmakers. Danish legislators have now followed Norway’s example by proposing changes to the Danish Marketing Act with a view to protecting Danish consumers. A 2020 study by Børns Vilkår highlighted that 38% of girls between 14 and 15 years old use photo optimisation filters before posting on social media. The idea behind the Norwegian and Danish initiatives is to reduce that number by forcing influencers and companies to promote body positivity, or at least clearly mark that the images have been manipulated.

Should the proposed wording be approved by the Danish Parliament, changes to the Danish Marketing Act will come into effect on 1 July 2023. The current general scope of the proposed wording concerns influencers and companies who use human models in their advertisements. Interestingly, part of the discussed proposals could place some liability on both publishers  and producers of modified imagery. This would no doubt completely shake up marketing and the way that many related industries traditionally operate.

Filters and photo optimisation software have been an integral part of the beauty and fashion industry for decades – models with apparently perfect skin and bodies have been displayed alongside products in order to enhance sales. It is only in recent years, with the proliferation of social media and AI capable of enhancing images quickly and efficiently, that edited, optimised and generally misleading images have become much more prevalent.

The proposed new legislation will not be limited to social media marketing; current proposals suggest that the government-issued mark should be visible on all commercials, promotions or advertisements where a person’s body shape, size or skin has been altered or modified.

Entertainment lawyers and those working within branding-related intellectual property are busy preparing the beauty and fashion industries to handle the effects of this new legislation, should it pass. They are also helping companies to examine potential implications for current and future campaigns, many of which will have been designed years in advance.

In Norway, the Norwegian Consumer Ombudsman acts as the enforcing entity. In Denmark, it has been proposed that enforcement should fall under the remit of the Danish Consumer Ombudsman, which will potentially be given power to demand proof of whether filters or other enhancements have been involved in images used for commercial purposes.

A new tier-based financial penalty model is already in place. Serial infringers of the Danish Marketing Act can expect to pay heavy fines based on annual gross revenue. The minister of commerce, Simon Kollerup, has also proposed jail time for serial infringers. The influencer, advertising and publishing industries are all on high alert as a result.

To quote a famous line from Shakespeare’s Hamlet: “There is something rotten in the state of Denmark.” With the new ban on photo enhancement in commercials, maybe – just maybe – we will become more aware of manipulation within visual marketing.