Offensive Advertising, Public Policy, and the Law: The Rulings on the Zagorka Case
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Transcript of Offensive Advertising, Public Policy, and the Law: The Rulings on the Zagorka Case
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 advertise-
ment. 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. Be-
sides, 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. De-
spite the rapid evolution of advertising in the countries from the re-
gion, 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 reg-
ulatory aspects of advertising in a country about which very little is
Journal of Consumer Policy 27: 475–493, 2004.
� 2004 Kluwer Academic Publishers. Printed in the Netherlands.
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 Con-
sumer Protection and Trade Rules in 1999 regulators have been sys-
tematically 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 discus-
sion 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 chal-
lenged companies in the courts because of an alleged offence to wo-
men’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 re-
cently. Since 1997 Bulgaria accelerated its economic reforms and
started rapidly to align its legislation with EU law. Amongst other
Elena Millan and Richard Elliott476
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 Tele-
vision (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 of-
fence, 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 dishon-
ourable. 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 unac-
ceptable 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 mis-
leading 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 ‘‘Dis-
honourable Advertising.’’ Amongst other stipulations dishonourable
covers every advertisement which contains elements of discrimination
regarding sex, race, religion, nationality, political convictions, age,
physical ormental abilities, orwhichoffends humandignity (Art. 34 (1)).
The Law on Radio and Television (LRT), adopted in 1998, was
amended in 2000 in order to include additional provisions for
The Zagorka Case 477
protecting consumers from dishonourable advertising. Two amend-
ments 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 Pro-
tection 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 infor-
mation with regard to tourist services. The advertising-related provi-
sions of the Law on Competition Protection deal with advertisements
which compromise the good reputation of competitors, provide mis-
leading 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 con-
sumer-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
Elena Millan and Richard Elliott478
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 re-
sults, 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 adver-
tising.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 promul-
gating 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 sur-
veillance.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
The Zagorka Case 479
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 Bul-
garian 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 summar-
ised 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 voice-
over 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 com-
petition 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 suc-
cessful businesswoman who was in the past a national fencing cham-
pion. 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 dis-
crimination and depicted the woman as an object of consumption. The
Elena Millan and Richard Elliott480
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 re-
jected 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 re-
ceived 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 laun-
ched, 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 subse-
quently that the lawsuits had been initiated by competitors of
Zagorka.17 Some concerns were also voiced in public that the cam-
paign 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
The Zagorka Case 481
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 dis-
crimination 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 organi-
sations – the specialised supervisory public body monitoring all pro-
grammes 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 men-
tioning 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
Elena Millan and Richard Elliott482
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 ap-
plies 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
The Zagorka Case 483
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 syn-
onym 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 trans-
lated as zhena, i.e., an adult female human being only. Both dictio-
naries 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 voice-
over 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, respec-
tively. 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
Elena Millan and Richard Elliott484
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 of-
fended the dignity of women, the last five claimants associated with
Association Animus also brought arguments related to their profes-
sional 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 feltdevalued 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
The Zagorka Case 485
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 wo-
men’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 rela-
tionships 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 eye-
catcher only, damaged the woman’s dignity, and that the advertise-
ment 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
Elena Millan and Richard Elliott486
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 provi-
sions 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 com-
pensation 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 sug-
gestion 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 de-
fence’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
The Zagorka Case 487
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 ac-
cepted 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 discrimi-
nation, 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 Pro-
tection 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
Elena Millan and Richard Elliott488
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 con-
sumerist values could be offended.’’38 In the view of the judge, how-
ever, 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 psy-
chologist that the claimant, who was also a professor at an American
university, ‘‘had inadequate expectations as she did not take into ac-
count 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 non-
material 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 be-
tween an exposure to a particular advertisement and non-material
The Zagorka Case 489
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 adver-
tising 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 advertise-
ment an instance of harmless humour? Answers to this question de-
pend 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 Bul-
garia 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 dis-
criminatory 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,
Elena Millan and Richard Elliott490
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).
The Zagorka Case 491
2 Commission for Consumer Protection (www.ktzp.bg).3 ‘‘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 �Zagorka’ 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.
Elena Millan and Richard Elliott492
39 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].
The Zagorka Case 493