This was quite a different episode for me on multiple levels. On one level, we discussed a topic that I had absolutely no previous knowledge or experience of other than the research that I did for the episode itself. Now, this made me feel a little bit unsettled. As an experienced generalist litigator, I've dealt with most areas of the law or have a basic understanding that they at least even exist, but this was quite
the exception. On another level, when I looked into it, I actually realized that this is one of those rare situations where you actually find that there is a gap in the law and a gap that I believe needs to be addressed. What I did learn from it, and that very much builds on this, is that the topic of body image law is absolutely worthy of discussion and research. It should be investigated further, and I do sincerely hope that you'll get as much out of this episode as I did. It was really
a pleasure to have Marilyn Bromberg join me. It was both illuminating and educating in so many aspects. I do truly hope that you'll enjoy the podcast. Joining me on the podcast today is Dr. Marilyn Bromberg. She is a director of Higher Degrees (Coursework) at the University of Western Australia's Law School. She has a PhD from Murdoch University and teaches the units Social Media and the Law, Professional Practice, and Law Advocacy, Activism and
Change. In 2017, she received the Blackstone Society's Teacher of the Year Award. Marilyn has spoken at many noteworthy institutions, including Harvard University, as well as before the Supreme Court of Canada. She also works as a lawyer. Marilyn researches and writes about issues that can make a difference such as health law and body image law. And she is currently studying a Graduate Certificate in Population
Studies at the University of Western Australia. When she's not researching or teaching, Marilyn also serves as a judge for the high school mock trial competition for the Law Society of Western Australia. Hello, Marilyn, how are you?
Good. How are you?
Well, other than a slight head cold, which you might pick up from my voice, I'm doing amazing. I've had a fairly full-on morning, but I'm really excited about our discussion and getting into the area of body image law. So what can you tell us about body image law? I mean, what is it?
Well, to understand what body image law is, you have to understand why many believe that it's necessary. So essentially, I mean, have you seen images of women where they look either unhealthily thin, or else curvy with a low body weight, and those images are meant to be the ideal body for women? Have you? Have you seen images like that?
Yeah, look, I have and I mean, I guess I'm kind of, without trying to show too much my age. You know, I kind of remember when Kate Moss was, was a professional model. And certainly, I guess it concerned me that that was an image projected, particularly for young woman to aspire to who just simply, you know, genetically would never get
there. But in more recent times, and I guess I'm you know, I've been aware of some controversies, particularly in Australia, kind of thinking of the Alex Perry and Cassie Van Den [Dungan] debacle where Alex Perry sort of made statements that her model agency shouldn't let her out until she looks healthier. And and I'm sure that there would be people who would would say the same thing. There is a certain body image that is too thin.
In terms of images of women, there's been a lot of research like by Shelley Maghrib in the United States, which has found that when you see these images of this ideal woman who is, you know, unhealthily thin, or she might be of a low body weight and curvy, then women might compare themselves and if they compare themselves, and they feel that they don't measure up, that they don't look as good, then that
can be bad for them psychologically. So it can develop into poor body image, it can develop into eating disorders. And these images are everywhere. They're ubiquitous, especially in the age of social media, where social media's all about images. So that's where we start from this idea that these images are a problem, and they're everywhere.
The images are causing harm. I think, you know, what I'm saying is, it can cause psychological harm that can also manifest itself into physical harm. Particularly if, if you have someone who is, you know, feeling, you know, I guess, adversely influenced by these images, that, to the extent where it's going to alter their behavior into unhealthy and unhealthy practices, yeah.
Yeah. And so Israel, and then later, France, and then later Norway, passed laws to address this issue. So in Israel and France, if an image was modified to make the model look thinner, it needs to have a warning on it. As well, models need to be either have a minimum BMI in Israel or have a healthy weight in France, and they need to get a medical certificate from their doctor for that. In Norway, they just
have the label. Norway only requires the label and the images, it does not require as well, anything in terms of the model's weight, or BMI. There have been three laws that have been passed, the Israeli law was passed in about 2015, a French law was passed in about 2017. The Norwegian law, that was passed in about 2021. So we have these three laws, which you might think, and also in the UK, actually, at the moment, under Luke Evans MP. He's got a bill in the UK Parliament to have a
disclaimer on the modified images as well. We've got three laws have been passed. There's a bill in, in the UK, that's trying to address this issue. But what is really unique and interesting and also horrifying about this is that there's a huge amount of medical research, like by Dr. Jasmine Fardouly or Dr. Marika Tiggerman in Australia, which has found that
the disclaimers don't work. So if you put a disclaimer on an image and say, for example, this, this image has been modified to make the model look thinner, it doesn't help the body image of the viewer, it makes it worse, because they compare themselves more to the image. So we've got these laws in effect, that, you know, if you if you look at the health research, and it's plentiful, and it's peer reviewed, they actually, they actually don't work,
Kind of creating an unintended consequence. I mean, I think, because you mentioned it, maybe we just start with Israel, because it sounds like Israel was was sort of an early adopter, you know, back in 2012 13. The warning from what I understand of images, they have to say whether it's been modified what where there's been, what 7% of the image or something along those lines, I've got some form of percentage. Is that how it works?
The sarning needs to take up 7% of the image.
Right. Okay, so that's all immediately made me think about things like the warnings that are on on cigarette packets, you know, where, you know, they'll have that have, you know, a warning of often a terrible image of what can happen if you smoke, but you're saying that the research is suggesting that putting the warning on there actually is counterproductive? Is that what I'm understanding?
Yes, but also thinking about the nature of the warning, like the nature is that something to the effect of this image has been modified to make the model look thinner, that's very different than say, putting a warning on cigarettes, which, you know, says you could die or you could get sick, which I think might be quite, you know, confronting and extreme. And so it should be. But with a warning on the models, it's just young images, it's just that the image has been modified, typically.
And it doesn't say, for example, if you try to look like this model, you know, what will happen to you. It doesn't say anything like that, for example.
Well, I mean, that's, I guess that's a really good point is to say, it's all very well saying, hey, this image has been modified, but I mean, for someone looking at an image modified from what, yeah, you know. And what does that
actually mean. I guess the other part of it is this issue of BMI or body mass index, as a measure of what, well let's just say good health or bad health might look like and perhaps maybe that's where the warnings should go is to say hey, this is an image of a model who's got a dangerously low BMI, and that's not good for your health. I mean, would that do you think
Good question. I don't know. That's for the that might help? psychologists to to decide. But the thing is that there are many problems with using BMI as well. So it's also hard to say what's healthy and what's not, in that there's many different problems that the scientific community have identified with using the BMI. And then also, you might have a model who is actually quite healthy in reality, but it's one of the few who's
actually naturally very, very thin. Right. So then what do you do in that situation when she's doing everything possible to be healthy? Yeah, it doesn't work that way. So I think it's more complicated than it appears like these laws in their current form aren't the answer, like what might be the answer? Well, I think the answer to addressing this issue is complex, but one possibility is perhaps requiring a diversity of sizes of models.
So the health research has found that when you have diverse sizes of models in images, that's good for mental health.
Yeah. Now, look, I did pick up the issue of Victoria's Secret a couple of years ago, started using a model, Ali Tate-Cutler for one of the campaigns in partnership with a London lingerie brand, Blue Bella. She was she was their first size 14 model. Now, I mean you had some views on that. I think one of your views was that Victoria's Secret was remarkably late in the game in having diversity amongst its models. I mean, I mean, is the industry catching up?
I think that there's been progress in the industry, for sure, over time, more acceptance of a diverse array of body sizes. But there's still so much pressure. I mean, and there's still so much, I guess there isn't enough broadness, in terms of an interpretation of what beauty should be for women. It's still quite narrow, but it's certainly better than it used to be. But I think a huge thing besides, you know, is law, the answer on you know, possibly, but a huge thing
that needs to happen is a change in culture. There needs to be education regarding bodies and, you know, teaching children that they shouldn't just try to conform to what societal expectations are for their body. So I think like a lot of things need to happen. But definitely the law in its current form, I
don't think is the answer. Law might be an answer. Another possibility as well, there's some research in its very early stages, which shows that if you show an image of what a person looks like, in reality, besides their altered photo, that can be positive body image.
Okay. And just going back to the culture aspect. I mean, do you think like, language plays a part in that? And I'll just use the example that the industry talks about when they say, oh well we're now using plus size models. I mean, have you got a view about labeling someone as a plus size model?
Yeah, actually, I was interviewed a couple years ago about that very topic. And I don't think we should be using the term plus size model, or like, for example, you know, curvy or that sort of thing. I think that it's damaging, because the thing is that when you look at the average model who is quote, plus size, end quote, she's actually normally the size of the average Australian woman, or the average
woman generally in a lot of Western countries. And so if you're that size, you're seeing a model whose termed plus size then it makes you think that you are bigger than average, and you're not. And I don't think that is helpful. I think we need to get rid of the term plus size. And, you know, what do we call a plus size model? Just a model.
Yeah, absolutely. Let me just go back to again, France, and there is this concept in the industry of being Paris thin. Do you think that the French laws are an attempt to address that? That concept that you know, models in Paris need to be need to be superthin?
I haven't heard the term Paris thin before. However, Paris and France generally, it's one of the fashion capitals of the world. And I think that by France legislating on this issue, it really is sending a sign to the world, that that something needs to be done.
Okay. Now you, you mentioned about the UK, a possible bill that's working its way through to address some of the mischief that we've been talking about in this podcast involving this. But I understand that at a more localized level, the Greater London Authority simply banned back in 2016 ads that promoted unhealthy body images on their public transport. Do you know anything about that?
Yeah, so what happened was the Mayor of London, just decided to ban these ads on public transport. And he said it was because he had two teenage daughters. And I think that it's a good example of the legislation or change in this area happening because it's often a politician who has some sort of connection to the kind of culture that's relevant or know someone impacted by an eating disorder that causes
change to happen. It makes me think of in Israel, how the first law was passed was actually because Adi Barkan, who was a fashion photographer, he had models who were friends who are dying from eating disorders. And then he started a very lengthy, and very, very important campaign with Rachel Adato, a politician in Israel to try to get the law passed there. So it's a lot of kind of ad hoc advocacy that is seeing change in this area happened. However, the thing is, is it needs to
reflect the evidence. I think, if you're gonna if you're going to pass laws, and go through that effort, like at least review the health evidence and have legislation reflect that.
Yeah, now I think Norway the following year, in 2017, followed up a similar policy, where they banned ads that promoted unhealthy body images in public places. Does that sound right to you?
That was a city in Norway. Yeah, Trondheim, Norway. And they did that. And yeah, and that's correct. But they they passed their national law in about 2021.
Okay. Well, I mean, it's, I guess, to a degree, it's good to see that there are localized responses to this issue, which are leading to more national responses. Perhaps there's some hope in New Zealand and Australia that something could be introduced here down under to really address what appears to be quite a serious issue, yes?
Yeah, I think I think it would be good iff, in New Zealand and Australia, they carefully reviewed the health research out there, it is plentiful, and then sought opinions from relevant stakeholders, with a view to passing legislation that reflects the health evidence.
Yeah. Now on the health topic, and I know I'm bouncing back to France, but it's just that it's sort of the area, which I was able to get a bit of information on. And there's also a prohibition, I understand, in France that you can't hire a model, unless the models got a verified medical certificate certifying that you know, that they're actually at a healthy body weight. And if you do, engage and hire a model, without such medical certificate, the fines aren't
small. It's 75,000 euros. So I'll just say, you know, approximately 120,000 Australian 140,000 kiwi, New Zealand, and up to six months in jail. I mean, this is quite a significant punishment. And I guess that maybe reflects how serious the French see this as an issue. Have you got thoughts on that?
Well also, yeah. I did want to add that in Israel as well, models need to have a medical certificate for their BMI in order to model and then also there can be civil punishments in Israel for breaching that. But in terms of France, like if we're talking about 120,000, you know, the equivalent of 120 or 150,000 Australian dollars. I think that for a, you know, the large businesses in France I would think that that probably isn't much but certainly six months in
jail, I think might have some sort of deterrent effect. But also I think the thing is that you know, I think six months in jail, could very well have a deterrent effect. I think for the small businesses, the financial penalty would probably have a deterrent effect. But also the issue is, is this law being enforced? I mean, that's a thing as well. So it's all good, you know, to have this sort of punishment, potentially. But,
you know, is it being enforced? But the thing is that I don't, I don't think that it's worth it to have these sort of punishments for legislation that doesn't reflect health evidence and won't improve things. I think if there's legislation that based on the evidence, who would help the people of France, then I'm all for these kinds of punishments. And in fact, I think that for the financial potential penalty, the financial penalty should be should depend on the the turnover of the
business or the revenue of the business. And so for small business, you have a smaller penalty, and for the large businesses, you hit them much harder than what you're currently hitting them with. And, therefore, because I don't think it's necessarily equitable, Norway wouldn't get the best result having just a one size fits all kind of penalty.
Yeah, look, I mean, I'm with you with that for some businesses, they would just see it as a tariff potentially, that they can easily absorb. I mean, New Zealand and Australia do have proceeds of crimes provisions and legislation that could possibly engage. But yes, certainly there is a penalty
there. Now, let's talk about social media and the law and how this fits in to body image law, because social media plays such a major part in many people's lives, but particularly young people, teenagers, those in the early 20s, and images, body image, plays, it plays a part in that depending on you know, what accounts people follow. And you know, what they're accessing over the internet. Where's the interconnection between social media and body image law?
Sure, well with social media, people are exposed to a huge amount of images. And you know, when you sign up to social media, it's normally because you want to stay in touch with friends or read the news or find out about your organizations or see many of my very cute puppy photos. It's not because you want to see images of people that are altered to make them look like if it into the ideal version of
beauty, right? And so the thing is that social media is a very image based medium, so many images that are modified to make people look better than they do. And there's a huge body of evidence, including by Marika Tiggerman and Jasmine Fardouly, which has found that what happens is what I described before is that people see these, these doctored images, or these images that are best possible of people, and they compare
themselves. And if they think that they don't measure up, then it can negatively impact their body image, and it could potentially lead to eating disorders.
Yeah. Okay. So you do see that there may be a role for some of these social media platforms to play in trying to help solve this problem? I mean, Meta, you know, we used to know it as Facebook, but you know, it owns Facebook, Instagram, WhatsApp, or, you know, various other online channels do we should it should a company like that take some responsibility for helping and prove, or at least mitigate against the dangers of bad body image communications?
You bet they should. It makes me think of there was a whistleblower [in the] United States. I don't know if you heard I think it might have been maybe a year ago or so, a year and a half. And I think her name might have been Frances Haugen, I think, don't quote me on that. And she leaked
a huge amount of information from Meta. And one of the things that she leaked was that Facebook or Meta knew that social media negatively contributed to the poor body image of its users and didn't really want to do anything about it.
It was just complacent, happy for it to occur. Is that what the conclusion was?
Oh, listen,I don't think that they were happy about it. But I don't think that they decided to take enough action to address it.
So coming back to Australia or New Zealand, we'll start off with Australia. I mean, it's my understanding that the government's position is that it's an industry issue to solve. And they're they're just leaving it up to the industry. Is that still the position?
Yes. Yeah.
I mean, I guess this is part of why we have laws is when you leave it to people to solve problems to resolve mischief, and that, and they're doing a poor job of it, isn't it time for the legislature to step in and say, look, we've given you an opportunity, and you're not doing it. So what, if anything, has the Australian Government done at any point in time to try and encourage the industry to, I guess, up its game on this point?
Well, in about 2010 or so the Labour government and their youth minister at the time, Kate Ellis put together a voluntary industry code of conduct. So it made these recommendations, like you should use models who are diverse and are of a healthy weight and that sort of thing. And it had some good ideas, but they were very vague. But importantly, it wasn't a law. So therefore, it wasn't really widespread in
terms of taking it up. So that so that was done. But I mean, I think the thing is that we need to remember that a lot of the people who are impacted by these images are vulnerable. They're young people, they don't critically analyze what they see. And therefore they take things at face value, and therefore I feel like the government does have responsibility, particularly for them, to take care of them and
to do something because they are so vulnerable. I mean, certainly I'm not saying that these images don't impact people who are older, they certainly do. But by and large, some of the worst impacts that we're seeing is on young people.
Well, I mean, it's a hallmark of any civilized society is the degree to which it protects and looks after the interests of its most vulnerable. And I mean, you're rightly saying, you know, we've got these young people who the science is saying or establishing are being adversely affected by poor body image, and the various fashion industry - taking one industry, but you can also say advertising and media as well - they are, you know, they've got a responsibility
here. They are the ones that are peddling it, perpetrating it, promoting it. They've had an opportunity, at least back at 2009, and 10 to sort themselves out on a voluntary basis. And if they're unable to do so then isn't that just screaming out to you that it's time to regulate?
Definitely.
Okay. Right. And I guess regulation, is there a model that we can we can look to? I mean, we've talked about Israel, we've talked about France. Is there a model there, that could be a good blueprint or a starting point for some legislation that could help take or at least be a positive step towards addressing these problems?
No, I don't know of any that is a good blueprint, because none reflect the evidence. I think there needs to be politicians working with psychologists in body image, who understand the peer reviewed research, who put together something that's evidence based. So unfortunately, at this point in time, notwithstanding that there are body image laws in the world that exist, I don't think that any would be relevant blueprint for New Zealand or Australia.
Okay, well, so it's really going to be a starting from, it sounds to me, a starting from scratch approach of various stakeholders being involved to formulate a regulatory regime, that's going to provide protection but also just make it safer for people to watch advertisements, to be exposed to them, to get onto social media, etcetera, yes?
Yeah. And I'd also like to see the existing body image laws modified to reflect evidence as well.
Okay, and is there anything in particular that stand out for you?
Oh, all of them, I think need to be modified so they reflect the evidence.
Okay. Well, it seems there's quite a bit of work that really needs to be done to move this forward. I mean, I guess, it's a question of getting some political motivation, some politicians that are prepared to accept that this is a problem and it's one that needs to be addressed. The industry doesn't appear to, in Australia, to have addressed it. And it can't carry on.
Precisely.
Yeah. All right. Well, look, I think this is a great topic and space that it really almost typifies, you know, the law and potential development for the future. You and others have clearly identified in certainly the overseas experience in some countries, you know, we've mentioned Israel, France, or the UK and Norway, is that there is the science there to say that, you know, harm is caused, and it needs to be addressed. You can't leave it up to the industry to
do it themselves. There has a role to be played in the law. And I guess, you know, we're at a point where, here in New Zealand and Australia, where their opportunity exists for our lawmakers to engage and develop some law into the future that's going to make New Zealand and Australia better places to be.
Here's hoping.
Marilyn, thank you very much for joining me on the podcast today. I mean, it's personally been a fascinating dive into an area of law that I've just literally never come across body image law. I feel more enriched for it and better informed. And, look, I'm going to watch the space and I think a few of the listeners will do that as well, in hoping that the status quo doesn't remain because the status quo doesn't sound like it's helping.
It's not. Thank you so much for having me. And it's been such a pleasure speaking with you, Chris.
Okay, hey, it's been really good connecting with you. And look, thanks for joining me on the podcast.
My pleasure. Thank you.
Thank you for tuning in and listening to this episode of the law down under podcast. You're welcome to join in on the discussion via my podcast page, which you can access at patterson.co.nz. That's patterson.co.nz. Thanks for supporting the podcast and tune in again for more on the law, its application and the future of the law here down under.