The Polarizing Concept of Sexist Advertising in the Context of Unfair Competition
. This article offers a critical examination of the legal classification of so-called sexist advertising within the framework of unfair competition law, construed broadly to encompass the regulation of unfair commercial practices under the Czech Consumer Protection Act. Drawing on definitions articulated in soft-law mechanisms and self- regulatory initiatives; the author analyzes the development of the concept of sexist advertising and its interpretation in recent Czech case law. The study aims to integrate these conceptual frameworks into the legal architecture governing unfair competition and unfair commercial practices. Emphasis is placed on the regulatory tension between the objectives of competition law and the prohibition of discriminatory advertising. The author evaluates the potential for addressing such advertising through the general clause prohibiting "infringements of public law with competition implications". The article concludes that a reflexive and principled approach - rooted in the regulatory purposes of competition law - provides a coherent solution. Such an approach prevents the incorporation of inconsistent axiological standards into the application of unfair competition provisions, thereby safeguarding legal certainty and doctrinal consistency.Key words:
sexist advertising, gender discrimination, unfair competition, self-regulation, unfair commercial practices, consumer protection.KOTÁSEK, J.: The Polarizing Concept of Sexist Advertising in the Context of Unfair Competition Law.
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Právny obzor,
108,
2025, special issue, pp. 82-96.Introduction
Advertising persistently pushes the boundaries of frequency, form, and content, often provoking calls from both the public and professionals for regulatory intervention. Such calls frequently take the form of proposals advocating the introduction of special rules governing advertising of sensitive commodities or targeting special consumer groups, such as children. In other instances, demands are directed at public authorities to invoke existing, more general legal safeguards (such as broad statutory clauses) to restrain problematic advertising practices.
Only few topics are more controversial than so-called sexism in advertising. This socially sensitive and polarizing issue has gradually migrated from academic debates within the social sciences and humanities into the legal domain. In the Czech Republic and Slovakia, efforts to restrict sexist advertising have been driven primarily by widely publicized campaigns of non-profit organizations
1)
, and to a lesser extent by instruments of industry self-regulation
2)
. Notably, the activities of NGOs such as NESEHNUTÍ in the Czech Republic have played a particularly prominent role. By contrast, self-regulatory bodies (such as the Czech and Slovak Advertising Councils) have demonstrated differing levels of engagement, with the Slovak Council adopting a more proactive stance, as evidenced by both its decisions and the subsequent reactions of the administrative courts.
After initial hesitation and delay
3)
, administrative authorities and courts in both the Czech Republic and Slovakia have ultimately acknowledged the legitimacy of censuring sexist advertising, at least in certain cases. This gradual recognition has been reflected in recent judicial developments, including important rulings delivered by the Supreme Administrative Courts in both jurisdictions.
This paper seeks to examine the notion of sexist advertising from the perspective of unfair competition regulation, with particular attention paid to both statutory frameworks and self-regulatory mechanisms.
I. Sexism in advertising
The term "sexist advertising" is not formally defined in Czech or Slovak legislation and does not constitute a legally recognized concept. In prohibiting such advertising, public authorities instead rely on broadly worded regulatory provisions, particularly those contained within the respective Acts on the Regulation of Advertising (most notably, provisions prohibiting conflicts with good morals
4)
) rather than on explicit legislative proscriptions
5)
.
Defining sexist advertising poses considerable challenges. Although derived from the English term "sexism," which might suggest an undue emphasis on human sexuality in marketing communications (e.g., through lascivious, lewd, obscene, or pornographic motifs), the concept is in fact much broader. Sexist advertising is generally understood as advertising that disadvantages individuals based on gender. This encompasses a wide array of manifestations: from the use of sexual motifs to communications characterized by "direct hatred of any gender or prejudice against men or women"
6)
. Crucially, the presence of sexually explicit elements is not essential to the qualification of advertising as sexist
7)
.
This broader interpretation aligns with the approach taken in the Methodological Information of the Czech Ministry of Industry and Trade (2015)
8)
, issued to harmonize the divergent enforcement practices among regional trade licensing offices under Section 2(3) of the Advertising Regulation Act. The methodology enumerates criteria significant for identifying sexist advertising, treating it as an instance of advertising that either discriminates or diminishes human dignity.
Within this framework, sexist advertising is conceptualized as unequal treatment on the basis of gender - a form of discrimination manifesting in advertising by, for example, humiliating, ridiculing, or disparaging women (and less commonly men) through sexual objectification or stereotyping. According to the methodology's creators, supervisory authorities should be attentive to specific attributes of advertising messages, including: the use of the human body, depiction of body parts, sexually colored elements, and stereotypical portrayals. Stereotypical depiction is defined as the attribution of certain characteristics, qualities, or roles to persons based on gender, whereby such persons are evaluated according to generalized ideas about the behavior and traits of members of special groups.
The Regional Court in Brno adopted a notably broad approach in its landmark decision concerning the pawnshop INDEX BOHEMIA
9)
, holding that an advertisement depicting a girl dressed only in under