Recently, the fashion company Balenciaga actively sought public recognition for its severing of ties with Twitter. The move came early in the campaign against Elon Musk for attempting to restore free speech protections on the site. Now, Balenciaga is under fire for an advertising campaign featuring children with Teddy Bears in BDSM outfits. As part of its effort to deflect claims of sexualizing children, the company is filing a $25 million lawsuit against the producers of the ad campaign. The filing is particularly interesting because it focuses not as much on the BDSM or bondage bears being marketed by Balenciaga, but the inclusion the image of a child pornography court ruling.  The company, however, could face some significant legal challenges over its own role in the campaign.

The campaign led to an immediate global backlash:

Alison H.Centofante

@AlisonHowardC

“The Balenciaga ad is disgusting. Toddlers posing with BDSM sex toys and alcohol. Hiding in plain sight a Supreme Court case involving a federal child porn law… Stop sexualizing kids to sell your ugly overpriced crap. #Balenciaga”

The company was also criticized for including images of books in other pictures by Michael Borremans, an artist known for his use of nude children and occult rituals.

We are sorry . . . sort of

Balenciaga issued two apologies. The company notably did not apologize for marketing the sexualized, BDSM bears. Rather, the company apologized for featuring its “plush bags” with children.

“We sincerely apologize for any offense our holiday campaign may have caused. Our plush bear bags should not have been featured with children in this campaign. We have immediately removed the campaign from all platforms.”

What the company does not explain with its first apology is why this is clearly outrageous but was still approved by the company.

Most major campaigns are approved by corporate executives. No major company simply gives contractors carte blanche on releasing images and marketing campaigns. Presumably, Balenciaga executives were shown the campaign in advance and liked it. If so, they saw no problem with children marketing bondage bears.

The second apology concerned the bizarre inclusion of a Supreme Court opinion in one of the images. Peaking out from a pile of objects on the table is the corner of the 2002 opinion in Williams v. United States, where the Court upheld a federal criminalization of the pandering and solicitation of child pornography.

There has been no explanation of why someone took it upon themselves to include the opinion. Ironically, the opinion upheld the right to prosecute those who pander or spread images deemed pornographic. The Balenciaga images are clearly not pornographic but they were immediately denounced by many for the use of children selling bondage bears.

Orphan Images

It is often said that “success has many fathers, failure is an orphan.” That certainly appears the case of this campaign, where no one seems to be taking ownership of the images.

Balenciaga has a reputation for its hair-triggered virtue signaling, as shown by its eagerness to join the media flash mob against Twitter. Now, the company is struggling to contain the damage by blaming everyone except apparently the photographer.

Gabriele Galimberti insisted on Instagram  that he was not responsible for the items displayed in the photos. Yet, while he may not have realized the subject matter of the opinion, he was fully aware that he was shooting children holding BDSM bags. The suggestion is that he simply pushes a button or has no independent judgment on the image. Presumably, there are a host of racist, antisemitic, or other offensive images that he would not shoot. Marketing sexualized, bondage products with children appears not to be among those images.

The lawsuit is directed against the production company North Six, Inc. and set designer Nicholas Des Jardins. The company seeks “redress for extensive damages defendants caused in connection with an advertising campaign Balenciaga hired them to produce.”

The filing claims that North Six and Des Jardins included the images of the court docs not only without its knowledge but with “malevolent or, at the very least, extraordinarily reckless” purpose. It claims economic damages from being “falsely and horrifically associated with the repulsive and deeply disturbing subject of the court decision.”

The Theory of Liability 

According to the filing, the image of the opinion was enough to cause damage to its corporate image because “members of the public, including the news media, have falsely and horrifically associated Balenciaga with the repulsive and deeply disturbing subject of the court decision.” Thus, North Six and Des Jardins would be liable for the “association” produced from the inclusion of a partial image of a Supreme Court opinion, an image that requires considerable magnification to be able to discern as a viewer.

The filing does not expressly name a cause of action beyond saying that the campaign was “inexplicable,” “malevolent, or at the very least, extraordinarily reckless.”

There could obviously be contractual claims. However, the filing sounds like a negligence-based action. Once again, the question is Balenciaga’s own possible review and approval of the campaign. The company could say that there was no reason for its staff to zero in on the tiny images of the papers on the table, though some would say that every part of such an image should be scrutinized. A jury might also balk at the claim shock when the campaign clearly featured children marketing bondage bears.

In the end, North Six and Des Jardins were contractors working for Balenciaga. That does not mean that liability is out of the question. It does make it more difficult. There is a common legal maxim, Volenti non fit injuria, or “to a willing person, it is not a wrong.”

Companies are generally liable under respondeat superior, or claims “that the master must answer” for actions taken by employees in the scope of their employment. The company can argue that these are independent contractors, not employees, but they must still act under contract in terms of content and approval by the parent company.

In some ways, the filing reads like a bizarre twist on “negligent entrustment” actions. That is usually where the company is sued by a third party for the actions of an employee or contractor. Here the company is basically arguing that it negligently entrusted these contractors with marketing and it was then harmed as a result of that entrustment. That may prove a tad too neat for a jury.

Of course, Balenciaga could view the filing as more of a public relations effort to shift blame rather than any real effort to secure damages from its own contractors.

If Balenciaga is looking at the filing as part of some public relations campaign, it may not want to pursue it for very long. Discovery will allow these contractors to depose Balenciaga officials on their own knowledge and approval of a campaign using the children to market bondage bears. That could erase any gains that Balenciaga achieved in this counter campaign.

Here are the notice and summons.