“Direct gaze and open mouth”
A revealing decision by the UK’s advertising standards body on the sliding scale of ‘sexy’ in a Calvin Klein b&w photographic ad campaign.
On Wednesday, the Committee of Advertising Practice (‘CAP’) issued its decision in a complaint against Calvin Klein Inc (‘CK’) in relation to three posters from its ‘Calvins or nothing’ April 2023 campaign featuring black and white photographs of FKA Twigs and Kendall Jenner. The images are by fashion photographer power-duo Mert Alas and Marcus Piggott who met in Hastings in the early 1990s and whose work has been featured in publications such as Vogue, Dazed, and i-D. The complainants believed the images to be ‘overly sexualised’.
Last week also saw the launch of a now viral and extensively commented on CK ad campaign featuring a certain Netflix chef working-out on a roof-top in his underwear. What a curious and timely juxtaposition.
I have commented on nudity/censorship in the past, mostly as to how it plays out on social media but I also have experience rebutting Advertising Standard Authority (‘ASA’) complaints so naturally this decision sparked my interest.
What is the CAP Code?
The ASA is a self-regulatory, rather than legal, body under which sits the CAP that creates, revises and enforces the CAP Code (the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing). It’s about marketing/advertorial, rather than editorial content, but this can be taken into consideration where relevant.
By the ASA’s admission ‘the Code supplements the law, fills gaps where the law does not reach and often provides an easier way of resolving disputes than by civil litigation or criminal prosecution’. In exceptional circumstances its decisions can be appealed through the High Court. It’s also worth noting that the ASA website states: ‘The system is structured so that it does not […] restrict free speech unjustifiably’.
What did it decide?
Of the three posters, only one (featuring FKA Twigs) was found to be: i) offensive and irresponsible (objectified women); and ii) inappropriate for display in an untargeted medium.
Why?
The ASA ‘considered the image’s composition placed viewers’ focus on the nudity not the clothes; ‘it presented [FKA Twigs] as a stereotypical sexual object’ and ‘her nudity and facial expression, including a direct gaze and open mouth, gave the image an overall sexual overture’. The ad was therefore deemed to breach the CAP Code and would not be permitted to appear again in that form.
Do up those buttons and close your mouth FKA Twigs! Regrettably, there’s not space here to include discussion of reams of art historical commentary on the male/female gaze. Another day, perhaps. FKA Twigs, by the way, disagrees with how she has been categorised.
What about the other images?
They weren’t nude enough. Some ‘stylised’ posing (pilates?) by Kendall Jenner covering her bare chest exonerated one of the ads and meant it was only ‘mildly sexual’. In the other image Ms Jenner was photographed ‘lying down wearing underwear (what a relief) with a pair of jeans pulled down just past her hips (we’ve all been there; it’s the only way to get skin-tight jeans off), and the camera positioned directly above her (the relevance of that perspective hadn’t escaped the ASA’s attention, but we’ll get there).
The FKA Twigs ad was offensive for the emphasis on nudity rather than clothing. The composition of the last Jenner image depicting her ‘lying down in front of the viewer in a state of partial undress with a seductive facial expression’ and ‘her face carried a sultry expression – she gazed directly at the viewer with her lips parted’ (it’s in the decision), was instead what a viewer would likely interpret as a lingerie ad because of the ‘prominence of the underwear’. Presumably, especially so when one is gazing from above?
The ASA concluded ‘the level of nudity was not beyond that which people would expect for a lingerie ad’. Therefore, the poster did not fall foul of the CAP Code but was restricted to not being displayed within 100 metres of schools.
A revealing decision?
It’s a rather incongruous decision with dissatisfying reasoning. Why conclude that the Jenner ads were sexual but ok because of the ‘lingerie’ but that FKA Twigs’ naked side-body perspective was to be censored. Is this an archaic presumption that revealing undergarments (or ‘lingerie’) is ‘somewhat’ sexy but nudity is ‘too sexy’? Is this always the case? Who is determining the sliding scale of sexy? If such a thing exists, can we please have sight of it for the sake of legal certainty? And are we really still talking about the female gaze being a defining factor of nude/naked?
CK could appeal (JR) but it’s worth noting that the courts have been keen to reiterate their role as merely ‘supervisory’:
‘the [ASA] is a specialist body; its principal task is to enforce the Code. In the course of doing so, it interprets the meaning of advertisements as a matter of routine. It has been doing so for over 50 years and the value of its experience and expertise should not be underestimated’.
Appeals that do get heard are usually concerned with various unfair consumer practices, as backed up by a raft of EU/UK consumer protection legislation. It’s unlikely that a court would wade in on the ‘sexy’ debate even if framed within the context of the ASA decision being a potential restriction of freedom of expression. I won’t be holding my breath in expectation of that ‘sliding scale’ mentioned above being published either.
**Update - In an unusual move which seems to reiterate the difficulty of deciding the issues outlined above, the ASA partially reversed its decision on March 6 2024. In relation to the image of FKA Twigs it stated: “we considered the image was not sexually explicit, and the ad presented a woman who appeared to be confident and in control." Further, it “concluded the ads were unlikely to be seen as irresponsible or cause serious or widespread offence on the basis of sexual objectification.”
Author: Philippa Malas, 14 January 2024