Japan’s Unwritten Advertising and Marketing Rules

In Japan, there are no detailed prohibitions on advertising/marketing activity in the hope that people will act in accordance with the spirit and purpose of the law. In addition, even if there are binding rules or regulations, it is common for private business associations to issue non-binding guidelines or rules that member companies will habitually comply with. Furthermore, even in the absence of such binding or non-binding rules, it is necessary to carefully ensure that advertising and marketing conform to traditional norms of Japanese society, as failure to do so could subject the advertiser to criticism. Three specific examples of such failures are stealth marketing, respect for culture and obscene expression.

In Japan, it is not legally required for advertising/marketing activities to be labelled as an advertisement or sponsored. However, in practice it is common to do so in accordance with the guidelines of private business associations. Since such labelling is not legally required, various marketing activities, especially on social media, are carried out without informing influencers that it is an advertisement.

Recently, a major global entertainment distributor came under harsh criticism for asking popular influencers to distribute content about a movie released by that distributor in order to promote that movie in Japan. The distributor publicly apologised for the inconvenience they caused by distributing the content without clearly identifying it as advertising/marketing. The Consumer Affairs Agency has recognised the issue of the lack of regulation on stealth marketing and is considering the issue. It is possible that a ban on stealth marketing may be forthcoming.

In Japan, expressions in advertising are protected by the right of free speech/expression in accordance with the Constitution and are relatively free of restriction. In addition, since there is no regulation on what can be used in advertisements, clothes worn by entertainers and what is used as a background in advertisements can usually be selected without restriction. However, even if use is legally acceptable, it can sometimes be culturally insensitive.

Recently, a global high fashion brand was criticised for advertising using Japanese models walking or standing on “obi” sashes, which are used to fasten kimono, Japanese traditional clothes. Producing obi requires years of training and is regarded as a highly skilled craft, and stepping on obi is regarded as very disrespectful. The use of advertising without knowledge of cultural nuances may have a negative impact on a brand's reputation.

Distributing or publicly displaying obscene documents or images (such as photos/drawings) is punishable under the Penal Code, but what constitutes obscenity is a rather loose concept in Japan, and excessive focus on female bodies in comics is not prosecuted as obscenity under the Penal Code in practice. That being so, advertisers tend to use such images as a means to draw attention to their advertisements. However, even where advertising or publications containing such images is legal, it is often criticised as misogynistic and unsuitable, and in many cases the advertisers will apologise and withdraw their advertisements. Given the trends in society towards greater diversity and inclusion, the use of such images/illustrations can be expected to be subject to greater criticism as time goes on.

Advertisers and ad producers should fully understand that there are various social and cultural constraints in Japan that are not based on law.