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


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


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


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


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


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


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


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


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


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


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


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


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,


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).


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.


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].


Documents

Offensive Advertising, Public Policy, and the Law: The Rulings on the Zagorka Case