Advertising and its conflict with good morals must be judged in the light of the period in question

The Slovak Trade Inspection Authority (“the defendant”) imposed a fine of EUR 10 000 on the owner of a nightclub for a serious breach of the general requirements for advertising. The advertisement depicted bare female breasts and a woman’s womb in which an anchor was displayed. The three billboards were placed in such a way that the advertisement was accessible to the general public, including children and minors. The inspectors considered that the advertising posters placed in a public space caused moral offence among consumers and that the plaintiff was disseminating advertising contrary to good morals pursuant to Article 3(5) of Act No. 147/2001 Coll. on Advertising and on Amendments and Additions to Certain Acts (hereinafter referred to as the ‘Advertising Act’).

In its administrative decision, the defendant reproached the plaintiff with the fact that the dissemination of such advertising is liable to have a negative and significant effect on the public, in particular in relation to children and adolescents. The depiction of a woman as a sexual attraction in a provocative position in order to attract attention was therefore assessed as substandard and contrary to good morals.

Proceedings at the Regional Court in Bratislava

The plaintiff brought an administrative action against the decision of the Slovak Trade Inspection in which it claimed, inter alia, that a breach of good morals would only occur if the elements of the advertisement were capable of causing a state of moral indignation among the general public and, in the case of children and minors, a state of moral decay in the form of a threat to their mental health. He remedied his conduct by covering the intimate parts of the model on the billboards, he did not commit a repetition of the offence and therefore he perceived the sanction imposed as inadequate.

The Administrative Court dismissed the administrative action as unfounded by judgment No. 6S/143/2017. It stated that the publication of nudity in general cannot be regarded as either disparaging or prohibited. What is important in the assessment is the particular manner of depiction of the naked body, which is always perceived individually by the human eye and each person can form his own image of it, depending, for example, on the pose, facial expression, thus forming a coherent image in the human imagination.

The possibility of restricting advertising comes into play if the content of the advertisement violates values protected by the legal order. Those include socially recognised morality, and the plaintiff’s advertisement in question deviated from the generally valid and recognised rules of morality in society.

Cassation proceedings

The plaintiff lodged a cassation complaint against the decision of the Administrative Court, in which it argued, inter alia, that the defendant’s decision-making practice was inconsistent, since in the more serious cases the defendant should have ruled that the depiction of a part of a woman’s body did not infringe the Advertising Act. The fine imposed is, in his view, disproportionately high to the point of liquidation, and the existence of a pressing social need to restrict freedom of expression in order to protect the rights and freedoms of others has not been met.

The plaintiff also complained of inadequate reasoning; it was not apparent to him how the advertisement was liable to cause offence or how it was liable to endanger the psychological, moral or social development of a minor. He also argued that the legislative definition of ‘good morals’ did not satisfy the principle of legal certainty because it was vague.

The Supreme Administrative Court of the Slovak Republic (‘the Court of Cassation’) dismissed the cassation complaint as unfounded. The Court of Cassation found that the commission of the act had been sufficiently proved. There was no dispute as to the existence of the advertisement, its content or the place where it was placed.

When assessing the argument concerning the alleged inconsistency in the defendant’s decision-making practice, which should have violated equality in the imposition of fines to the detriment of the plaintiff, the Court of Cassation referred to its earlier decision in Case No. 5 Stk 5/2022 and the judgment of the Supreme Court of the Slovak Republic in Case No. 5 Asan 21/2019. In both proceedings, fines were imposed three times higher, namely for infringement of Article 3(1)(c) of the Advertising Act. Thus, the difference in the present case and the two decided cases was in the application of a different provision of the Advertising Act. However, according to the legal opinion of the Panel in the present case, despite the difference, the content of the advertisement remained the same, since in all the advertisements the naked human body was depicted in an inappropriate manner. Comparing the contested advertisement with two other advertisements, it was not possible to agree with plaintiff, when he argued that the Slovak Trade Inspection Authority’s procedure for imposing fines lacked consistency.

As regards the penalty, the plaintiff has not sufficiently substantiated its objection that the fine is unjustified, disproportionate and disastrous. Respecting the principle of equality of arms, the Court of Cassation points out that it does not have jurisdiction to amend a cassation complaint.

In assessing whether or not the contested advertisement is contrary to good morals, the Court of Cassation recalled that such an assessment is a matter for the sound discretion of the public authority. Therefore, it is for the administrative court to examine only whether, in the decision taken, the defendant did not exceed the limits and considerations laid down by law. That task was fulfilled by the administrative court. Also according to the Court of Cassation’s conclusion, the woman in the posters is depicted as a sexual attraction in a provocative position in order to attract attention. The exposure of the woman’s breasts and the woman’s womb with the placement of the anchor exceeds the permissible presentation of the nakedness of the human body.

On the absence of a legal definition of the concept of good morals, making it uncertain whether the advertisement complied with good morals, the Panel of the Court of Cassation stated that there are moral criteria in society, under which the depiction of the human body presenting a human being as a dignified human being indisputably falls. However, this was not complied with in the case of the advertisements complained of. The judges also noted that the perception of the concept of good morals and the permissible level of depiction of nudity is evolving and therefore advertising must always be considered in the context of the period. However, in any case, it should not present a person as a thing, a commodity without freedom, will and feelings.

A cassation complaint may challenge a final decision of an administrative court, and the Administrative Procedure Code exhaustively defines the grounds for its admissibility. In general, a cassation complaint may be lodged within one month from the date of delivery of the administrative court’s decision to the entitled subject (Article 438 et seq. of the Administrative Procedure Code).

In file Case No. 2 Stk 18/2022 of 31 May 2024, Panel No. 2 of the Supreme Administrative Court of the Slovak Republic decided unanimously, composed of: the President of the Panel, prof. JUDr. Juraj Vačok, PhD. (judge-rapporteur), judges JUDr. Elena Berthotyová, PhD. and JUDr. Marián Trenčan.