Episode Transcript
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Chris Patterson (00:06):
This was quite
a different episode for me on
multiple levels. On one level,we discussed a topic that I had
absolutely no previous knowledgeor experience of other than the
research that I did for theepisode itself. Now, this made
me feel a little bit unsettled.As an experienced generalist
litigator, I've dealt with mostareas of the law or have a basic
(00:27):
understanding that they at leasteven exist, but this was quite
the exception. On another level,when I looked into it, I
actually realized that this isone of those rare situations
where you actually find thatthere is a gap in the law and a
gap that I believe needs to beaddressed. What I did learn from
it, and that very much builds onthis, is that the topic of body
(00:51):
image law is absolutely worthyof discussion and research. It
should be investigated further,and I do sincerely hope that
you'll get as much out of thisepisode as I did. It was really
a pleasure to have MarilynBromberg join me. It was both
illuminating and educating in somany aspects. I do truly hope
(01:13):
that you'll enjoy the podcast.
Joining me on the podcast todayis Dr. Marilyn Bromberg. She is
a director of Higher Degrees(Coursework) at the University
of Western Australia's LawSchool. She has a PhD from
Murdoch University and teachesthe units Social Media and the
Law, Professional Practice, andLaw Advocacy, Activism and
(01:34):
Change. In 2017, she receivedthe Blackstone Society's Teacher
of the Year Award. Marilyn hasspoken at many noteworthy
institutions, including HarvardUniversity, as well as before
the Supreme Court of Canada. Shealso works as a lawyer. Marilyn
researches and writes aboutissues that can make a
difference such as health lawand body image law. And she is
(01:57):
currently studying a GraduateCertificate in Population
Studies at the University ofWestern Australia. When she's
not researching or teaching,Marilyn also serves as a judge
for the high school mock trialcompetition for the Law Society
of Western Australia. Hello,Marilyn, how are you?
Marilyn Bromberg (02:15):
Good. How are
you?
Chris Patterson (02:17):
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'mreally excited about our
discussion and getting into thearea of body image law. So what
can you tell us about body imagelaw? I mean, what is it?
Marilyn Bromberg (02:36):
Well, to
understand what body image law
is, you have to understand whymany believe that it's
necessary. So essentially, Imean, have you seen images of
women where they look eitherunhealthily thin, or else curvy
(02:57):
with a low body weight, andthose images are meant to be the
ideal body for women? Have you?Have you seen images like that?
Chris Patterson (03:05):
Yeah, look, I
have and I mean, I guess I'm
kind of, without trying to showtoo much my age. You know, I
kind of remember when Kate Mosswas, was a professional model.
And certainly, I guess itconcerned me that that was an
image projected, particularlyfor young woman to aspire to who
(03:27):
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 somecontroversies, particularly in
Australia, kind of thinking ofthe Alex Perry and Cassie Van
Den [Dungan] debacle where AlexPerry sort of made statements
(03:49):
that her model agency shouldn'tlet her out until she looks
healthier. And and I'm sure thatthere would be people who would
would say the same thing. Thereis a certain body image that is
too thin.
Marilyn Bromberg (04:06):
In terms of
images of women, there's been a
lot of research like by ShelleyMaghrib in the United States,
which has found that when yousee these images of this ideal
woman who is, you know,unhealthily thin, or she might
(04:27):
be of a low body weight andcurvy, then women might compare
themselves and if they comparethemselves, and they feel that
they don't measure up, that theydon't look as good, then that
can be bad for thempsychologically. So it can
(04:48):
develop into poor body image, itcan develop into eating
disorders. And these images areeverywhere. They're ubiquitous,
especially in the age of socialmedia, where social media's all
about images. So that's where westart from this idea that these
images are a problem, andthey're everywhere.
Chris Patterson (05:07):
The images are
causing harm. I think, you know,
what I'm saying is, it can causepsychological harm that can also
manifest itself into physicalharm. Particularly if, if you
have someone who is, you know,feeling, you know, I guess,
adversely influenced by theseimages, that, to the extent
(05:29):
where it's going to alter theirbehavior into unhealthy and
unhealthy practices, yeah.
Marilyn Bromberg (05:35):
Yeah. And so
Israel, and then later, France,
and then later Norway, passedlaws to address this issue. So
in Israel and France, if animage was modified to make the
model look thinner, it needs tohave a warning on it. As well,
(05:57):
models need to be either have aminimum BMI in Israel or have a
healthy weight in France, andthey need to get a medical
certificate from their doctorfor that. In Norway, they just
have the label. Norway onlyrequires the label and the
images, it does not require aswell, anything in terms of the
(06:20):
model's weight, or BMI. Therehave been three laws that have
been passed, the Israeli law waspassed in about 2015, a French
law was passed in about 2017.The Norwegian law, that was
passed in about 2021. So we havethese three laws, which you
might think, and also in the UK,actually, at the moment, under
(06:40):
Luke Evans MP. He's got a billin the UK Parliament to have a
disclaimer on the modifiedimages as well. We've got three
laws have been passed. There's abill in, in the UK, that's
trying to address this issue.But what is really unique and
interesting and also horrifyingabout this is that there's a
(07:00):
huge amount of medical research,like by Dr. Jasmine Fardouly or
Dr. Marika Tiggerman inAustralia, which has found that
the disclaimers don't work. Soif you put a disclaimer on an
image and say, for example,this, this image has been
modified to make the model lookthinner, it doesn't help the
(07:21):
body image of the viewer, itmakes it worse, because they
compare themselves more to theimage. So we've got these laws
in effect, that, you know, ifyou if you look at the health
research, and it's plentiful,and it's peer reviewed, they
actually, they actually don'twork,
Chris Patterson (07:38):
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 earlyadopter, you know, back in 2012
13. The warning from what Iunderstand of images, they have
to say whether it's beenmodified what where there's
(08:02):
been, what 7% of the image orsomething along those lines,
I've got some form ofpercentage. Is that how it
works?
Marilyn Bromberg (08:10):
The sarning
needs to take up 7% of the
image.
Chris Patterson (08:13):
Right. Okay, so
that's all immediately made me
think about things like thewarnings that are on on
cigarette packets, you know,where, you know, they'll have
that have, you know, a warningof often a terrible image of
what can happen if you smoke,but you're saying that the
research is suggesting thatputting the warning on there
(08:35):
actually is counterproductive?Is that what I'm understanding?
Marilyn Bromberg (08:39):
Yes, but also
thinking about the nature of the
warning, like the nature is thatsomething to the effect of this
image has been modified to makethe model look thinner, that's
very different than say, puttinga warning on cigarettes, which,
you know, says you could die oryou could get sick, which I
think might be quite, you know,confronting and extreme. And so
(09:05):
it should be. But with a warningon the models, it's just young
images, it's just that the imagehas been modified, typically.
And it doesn't say, for example,if you try to look like this
model, you know, what willhappen to you. It doesn't say
anything like that, for example.
Chris Patterson (09:24):
Well, I mean,
that's, I guess that's a really
good point is to say, it's allvery well saying, hey, this
image has been modified, but Imean, for someone looking at an
image modified from what, yeah,you know. And what does that
actually mean. I guess the otherpart of it is this issue of BMI
(09:44):
or body mass index, as a measureof what, well let's just say
good health or bad health mightlook like and perhaps maybe
that's where the warnings shouldgo is to say hey, this is an
image of a model who's got adangerously low BMI, and that's
(10:08):
not good for your health. Imean, would that do you think
Marilyn Bromberg (10:11):
Good question.
I don't know. That's for the
that might help?
psychologists to to decide. Butthe 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 thatthere's many different problems
that the scientific communityhave identified with using the
BMI. And then also, you mighthave a model who is actually
(10:34):
quite healthy in reality, butit's one of the few who's
actually naturally very, verythin. Right. So then what do you
do in that situation when she'sdoing everything possible to be
healthy? Yeah, it doesn't workthat way. So I think it's more
complicated than it appears likethese laws in their current form
(10:54):
aren't the answer, like whatmight be the answer? Well, I
think the answer to addressingthis issue is complex, but one
possibility is perhaps requiringa diversity of sizes of models.
So the health research has foundthat when you have diverse sizes
of models in images, that's goodfor mental health.
Chris Patterson (11:16):
Yeah. Now,
look, I did pick up the issue of
Victoria's Secret a couple ofyears ago, started using a
model, Ali Tate-Cutler for oneof 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
(11:41):
that. I think one of your viewswas that Victoria's Secret was
remarkably late in the game inhaving diversity amongst its
models. I mean, I mean, is theindustry catching up?
Marilyn Bromberg (11:53):
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'sstill so much pressure. I mean,
and there's still so much, Iguess there isn't enough
(12:13):
broadness, in terms of aninterpretation of what beauty
should be for women. It's stillquite narrow, but it's certainly
better than it used to be. But Ithink a huge thing besides, you
know, is law, the answer on youknow, possibly, but a huge thing
that needs to happen is a changein culture. There needs to be
education regarding bodies and,you know, teaching children that
(12:40):
they shouldn't just try toconform to what societal
expectations are for their body.So I think like a lot of things
need to happen. But definitelythe law in its current form, I
don't think is the answer. Lawmight be an answer. Another
possibility as well, there'ssome research in its very early
stages, which shows that if youshow an image of what a person
(13:04):
looks like, in reality, besidestheir altered photo, that can be
positive body image.
Chris Patterson (13:08):
Okay. And just
going back to the culture
aspect. I mean, do you thinklike, language plays a part in
that? And I'll just use theexample that the industry talks
about when they say, oh wellwe're now using plus size
models. I mean, have you got aview about labeling someone as a
plus size model?
Marilyn Bromberg (13:28):
Yeah,
actually, I was interviewed a
couple years ago about that verytopic. And I don't think we
should be using the term plussize model, or like, for
example, you know, curvy or thatsort of thing. I think that it's
damaging, because the thing isthat when you look at the
(13:50):
average model who is quote, plussize, end quote, she's actually
normally the size of the averageAustralian woman, or the average
woman generally in a lot ofWestern countries. And so if
you're that size, you're seeinga model whose termed plus size
then it makes you think that youare bigger than average, and
you're not. And I don't thinkthat is helpful. I think we need
(14:12):
to get rid of the term plussize. And, you know, what do we
call a plus size model? Just amodel.
Chris Patterson (14:21):
Yeah,
absolutely. Let me just go back
to again, France, and there isthis concept in the industry of
being Paris thin. Do you thinkthat the French laws are an
attempt to address that? Thatconcept that you know, models in
Paris need to be need to besuperthin?
Marilyn Bromberg (14:43):
I haven't
heard the term Paris thin
before. However, Paris andFrance generally, it's one of
the fashion capitals of theworld. And I think that by
France legislating on thisissue, it really is sending a
sign to the world, that thatsomething needs to be done.
Chris Patterson (15:03):
Okay. Now you,
you mentioned about the UK, a
possible bill that's working itsway through to address some of
the mischief that we've beentalking about in this podcast
involving this. But I understandthat at a more localized level,
the Greater London Authoritysimply banned back in 2016 ads
(15:25):
that promoted unhealthy bodyimages on their public
transport. Do you know anythingabout that?
Marilyn Bromberg (15:31):
Yeah, so what
happened was the Mayor of
London, just decided to banthese ads on public transport.
And he said it was because hehad two teenage daughters. And I
think that it's a good exampleof the legislation or change in
(15:55):
this area happening because it'soften a politician who has some
sort of connection to the kindof culture that's relevant or
know someone impacted by aneating disorder that causes
change to happen. It makes methink of in Israel, how the
(16:16):
first law was passed wasactually because Adi Barkan, who
was a fashion photographer, hehad models who were friends who
are dying from eating disorders.And then he started a very
lengthy, and very, veryimportant campaign with Rachel
Adato, a politician in Israel totry to get the law passed there.
(16:37):
So it's a lot of kind of ad hocadvocacy 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 throughthat effort, like at least
review the health evidence andhave legislation reflect that.
Chris Patterson (17:02):
Yeah, now I
think Norway the following year,
in 2017, followed up a similarpolicy, where they banned ads
that promoted unhealthy bodyimages in public places. Does
that sound right to you?
Marilyn Bromberg (17:18):
That was a
city in Norway. Yeah, Trondheim,
Norway. And they did that. Andyeah, and that's correct. But
they they passed their nationallaw in about 2021.
Chris Patterson (17:30):
Okay. Well, I
mean, it's, I guess, to a
degree, it's good to see thatthere are localized responses to
this issue, which are leading tomore national responses. Perhaps
there's some hope in New Zealandand Australia that something
(17:50):
could be introduced here downunder to really address what
appears to be quite a seriousissue, yes?
Marilyn Bromberg (17:59):
Yeah, I think
I think it would be good iff, in
New Zealand and Australia, theycarefully reviewed the health
research out there, it isplentiful, and then sought
opinions from relevantstakeholders, with a view to
passing legislation thatreflects the health evidence.
Chris Patterson (18:19):
Yeah. Now on
the health topic, and I know I'm
bouncing back to France, butit's just that it's sort of the
area, which I was able to get abit of information on. And
there's also a prohibition, Iunderstand, in France that you
can't hire a model, unless themodels got a verified medical
certificate certifying that youknow, that they're actually at a
(18:42):
healthy body weight. And if youdo, engage and hire a model,
without such medicalcertificate, the fines aren't
small. It's 75,000 euros. SoI'll just say, you know,
approximately 120,000 Australian140,000 kiwi, New Zealand, and
(19:07):
up to six months in jail. Imean, this is quite a
significant punishment. And Iguess that maybe reflects how
serious the French see this asan issue. Have you got thoughts
on that?
Marilyn Bromberg (19:22):
Well also,
yeah. I did want to add that in
Israel as well, models need tohave a medical certificate for
their BMI in order to model andthen also there can be civil
punishments in Israel forbreaching that. But in terms of
France, like if we're talkingabout 120,000, you know, the
equivalent of 120 or 150,000Australian dollars. I think that
(19:45):
for a, you know, the largebusinesses in France I would
think that that probably isn'tmuch but certainly six months in
jail, I think might have somesort of deterrent effect. But
also I think the thing is thatyou know, I think six months in
jail, could very well have adeterrent effect. I think for
the small businesses, thefinancial penalty would probably
(20:10):
have a deterrent effect. Butalso the issue is, is this law
being enforced? I mean, that's athing as well. So it's all good,
you know, to have this sort ofpunishment, potentially. But,
you know, is it being enforced?But the thing is that I don't, I
don't think that it's worth itto have these sort of
(20:31):
punishments for legislation thatdoesn't reflect health evidence
and won't improve things. Ithink if there's legislation
that based on the evidence, whowould help the people of France,
then I'm all for these kinds ofpunishments. And in fact, I
think that for the financialpotential penalty, the financial
(20:53):
penalty should be should dependon the the turnover of the
business or the revenue of thebusiness. And so for small
business, you have a smallerpenalty, and for the large
businesses, you hit them muchharder than what you're
currently hitting them with.And, therefore, because I don't
think it's necessarilyequitable, Norway wouldn't get
(21:16):
the best result having just aone size fits all kind of
penalty.
Chris Patterson (21:20):
Yeah, look, I
mean, I'm with you with that for
some businesses, they would justsee it as a tariff potentially,
that they can easily absorb. Imean, New Zealand and Australia
do have proceeds of crimesprovisions and legislation that
could possibly engage. But yes,certainly there is a penalty
(21:41):
there. Now, let's talk aboutsocial media and the law and how
this fits in to body image law,because social media plays such
a major part in many people'slives, but particularly young
people, teenagers, those in theearly 20s, and images, body
(22:03):
image, plays, it plays a part inthat depending on you know, what
accounts people follow. And youknow, what they're accessing
over the internet. Where's theinterconnection between social
media and body image law?
Marilyn Bromberg (22:21):
Sure, well
with social media, people are
exposed to a huge amount ofimages. And you know, when you
sign up to social media, it'snormally because you want to
stay in touch with friends orread the news or find out about
your organizations or see manyof my very cute puppy photos.
(22:43):
It's not because you want to seeimages of people that are
altered to make them look likeif it into the ideal version of
beauty, right? And so the thingis that social media is a very
image based medium, so manyimages that are modified to make
people look better than they do.And there's a huge body of
(23:04):
evidence, including by MarikaTiggerman and Jasmine Fardouly,
which has found that whathappens is what I described
before is that people see these,these doctored images, or these
images that are best possible ofpeople, and they compare
themselves. And if they thinkthat they don't measure up, then
(23:26):
it can negatively impact theirbody image, and it could
potentially lead to eatingdisorders.
Chris Patterson (23:32):
Yeah. Okay. So
you do see that there may be a
role for some of these socialmedia platforms to play in
trying to help solve thisproblem? I mean, Meta, you know,
we used to know it as Facebook,but you know, it owns Facebook,
Instagram, WhatsApp, or, youknow, various other online
(23:52):
channels do we should it shoulda company like that take some
responsibility for helping andprove, or at least mitigate
against the dangers of bad bodyimage communications?
Marilyn Bromberg (24:13):
You bet they
should. It makes me think of
there was a whistleblower [inthe] United States. I don't know
if you heard I think it mighthave been maybe a year ago or
so, a year and a half. And Ithink her name might have been
Frances Haugen, I think, don'tquote me on that. And she leaked
a huge amount of informationfrom Meta. And one of the things
(24:36):
that she leaked was thatFacebook or Meta knew that
social media negativelycontributed to the poor body
image of its users and didn'treally want to do anything about
it.
Chris Patterson (24:53):
It was just
complacent, happy for it to
occur. Is that what theconclusion was?
Marilyn Bromberg (25:00):
Oh, listen,I
don't think that they were happy
about it. But I don't think thatthey decided to take enough
action to address it.
Chris Patterson (25:14):
So coming back
to Australia or New Zealand,
we'll start off with Australia.I mean, it's my understanding
that the government's positionis that it's an industry issue
to solve. And they're they'rejust leaving it up to the
industry. Is that still theposition?
Marilyn Bromberg (25:32):
Yes. Yeah.
Chris Patterson (25:36):
I mean, I guess
this is part of why we have laws
is when you leave it to peopleto solve problems to resolve
mischief, and that, and they'redoing a poor job of it, isn't it
time for the legislature to stepin and say, look, we've given
(25:59):
you an opportunity, and you'renot doing it. So what, if
anything, has the AustralianGovernment done at any point in
time to try and encourage theindustry to, I guess, up its
game on this point?
Marilyn Bromberg (26:17):
Well, in about
2010 or so the Labour government
and their youth minister at thetime, Kate Ellis put together a
voluntary industry code ofconduct. So it made these
recommendations, like you shoulduse models who are diverse and
are of a healthy weight and thatsort of thing. And it had some
(26:39):
good ideas, but they were veryvague. But importantly, it
wasn't a law. So therefore, itwasn't really widespread in
terms of taking it up. So thatso that was done. But I mean, I
think the thing is that we needto remember that a lot of the
people who are impacted by theseimages are vulnerable. They're
young people, they don'tcritically analyze what they
(27:01):
see. And therefore they takethings at face value, and
therefore I feel like thegovernment does have
responsibility, particularly forthem, to take care of them and
to do something because they areso vulnerable. I mean, certainly
I'm not saying that these imagesdon't impact people who are
older, they certainly do. But byand large, some of the worst
(27:23):
impacts that we're seeing is onyoung people.
Chris Patterson (27:28):
Well, I mean,
it's a hallmark of any civilized
society is the degree to whichit protects and looks after the
interests of its mostvulnerable. And I mean, you're
rightly saying, you know, we'vegot these young people who the
science is saying orestablishing are being adversely
affected by poor body image, andthe various fashion industry -
(27:57):
taking one industry, but you canalso say advertising and media
as well - they are, you know,they've got a responsibility
here. They are the ones that arepeddling it, perpetrating it,
promoting it. They've had anopportunity, at least back at
2009, and 10 to sort themselvesout on a voluntary basis. And if
(28:22):
they're unable to do so thenisn't that just screaming out to
you that it's time to regulate?
Marilyn Bromberg (28:29):
Definitely.
Chris Patterson (28:30):
Okay. Right.
And I guess regulation, is there
a model that we can we can lookto? I mean, we've talked about
Israel, we've talked aboutFrance. Is there a model there,
that could be a good blueprintor a starting point for some
legislation that could help takeor at least be a positive step
(28:53):
towards addressing theseproblems?
Marilyn Bromberg (28:55):
No, I don't
know of any that is a good
blueprint, because none reflectthe evidence. I think there
needs to be politicians workingwith psychologists in body
image, who understand the peerreviewed research, who put
together something that'sevidence based. So
unfortunately, at this point intime, notwithstanding that there
are body image laws in the worldthat exist, I don't think that
(29:18):
any would be relevant blueprintfor New Zealand or Australia.
Chris Patterson (29:23):
Okay, well, so
it's really going to be a
starting from, it sounds to me,a starting from scratch approach
of various stakeholders beinginvolved to formulate a
regulatory regime, that's goingto provide protection but also
(29:43):
just make it safer for people towatch advertisements, to be
exposed to them, to get ontosocial media, etcetera, yes?
Marilyn Bromberg (29:53):
Yeah. And I'd
also like to see the existing
body image laws modified toreflect evidence as well.
Chris Patterson (30:00):
Okay, and is
there anything in particular
that stand out for you?
Marilyn Bromberg (30:05):
Oh, all of
them, I think need to be
modified so they reflect theevidence.
Chris Patterson (30:08):
Okay. Well, it
seems there's quite a bit of
work that really needs to bedone to move this forward. I
mean, I guess, it's a questionof getting some political
motivation, some politiciansthat are prepared to accept that
this is a problem and it's onethat needs to be addressed. The
(30:31):
industry doesn't appear to, inAustralia, to have addressed it.
And it can't carry on.
Marilyn Bromberg (30:40):
Precisely.
Chris Patterson (30:41):
Yeah. All
right. Well, look, I think this
is a great topic and space thatit really almost typifies, you
know, the law and potentialdevelopment for the future. You
and others have clearlyidentified in certainly the
(31:02):
overseas experience in somecountries, you know, we've
mentioned Israel, France, or theUK 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'tleave it up to the industry to
do it themselves. There has arole to be played in the law.
(31:22):
And I guess, you know, we're ata point where, here in New
Zealand and Australia, wheretheir opportunity exists for our
lawmakers to engage and developsome law into the future that's
going to make New Zealand andAustralia better places to be.
Marilyn Bromberg (31:40):
Here's hoping.
Chris Patterson (31:43):
Marilyn, thank
you very much for joining me on
the podcast today. I mean, it'spersonally been a fascinating
dive into an area of law thatI've just literally never come
across body image law. I feelmore enriched for it and better
informed. And, look, I'm goingto watch the space and I think a
few of the listeners will dothat as well, in hoping that the
(32:07):
status quo doesn't remainbecause the status quo doesn't
sound like it's helping.
Marilyn Bromberg (32:13):
It's not.
Thank you so much for having me.
And it's been such a pleasurespeaking with you, Chris.
Chris Patterson (32:19):
Okay, hey, it's
been really good connecting with
you. And look, thanks forjoining me on the podcast.
Marilyn Bromberg (32:23):
My pleasure.
Thank you.
Chris Patterson (32:26):
Thank you for
tuning in and listening to this
episode of the law down underpodcast. You're welcome to join
in on the discussion via mypodcast page, which you can
access at patterson.co.nz.That's patterson.co.nz. Thanks
for supporting the podcast andtune in again for more on the
law, its application and thefuture of the law here down
(32:47):
under.