SECTION C: TV & RADIO/ AV

APPLICABLE LEGISLATION 

- Framework Law on alcohol and alcohol-related problems; Art. 13 (LD 125/2001)

- LD 208/2021 (IT), Arts. 43, 44 (9), 46-48

- Self-Regulatory Code on Media and Minors (Art. 4; applies to TV only)

• Alcohol marcoms content rules in our earlier section B apply in this channel, as do the content rules that apply to all product sectors, alcohol included, shown under the General tab in content section B 
• Rules include those transposed from the AVMS Directive into LD 208/2021 for e.g. social and sexual success, alcohol content, physical performance, driving etc. under article 44 (9). Other alcohol commercial content rules are under article 43 which covers the prohibition of targeting of minors, encouragement of excessive consumption   
• More specific to channel rules are the sponsorship and product placement provisions (see Arts. 46 and 48 respectively of the Decree). Both techniques are permitted for alcohol brands subject to the rules applicable to all sponsors set out in that article. Under the terms of the AVMS Code repealed by Decree 208/2021, sponsorship of drinks 'of high alcohol content' was not permitted
• Clearly, the prohibition of the targeting of minors applies to all techniques/ formats; under the terms of article 43 (3) of LD 208/2021, the Alcohol rules set out under article 44 (9) referenced in the second bullet point above do not apply to product placement and sponsorship 
• The Decree's rules apply to linear and to non-linear services which means that VOD is in remit as are video-sharing patforms specifically, as a result of the Directive 2018/1808 amends to the AVMS Directive transposed into LD 208/2021, article 42 in particular. Radio is in remit of the LD 208/2021
• The Code on Media and Minors does not extend to VOD. It's not made completely clear whether the Framework Law applies to VOD; best to assume that it does – the Content provisions are anyway very largely reflected either in the IAP Code or the Decree, and the channel provisions in terms of timeframes are not applicable, by definition, to VOD. The core point is to avoid the targeting of minors, covered anyway in various regulatory measures that include VOD in their scope

SECTION C: TV & RADIO/ AV

New Legislative Decree Amending The Audiovisual Media Services Code

Portolano Cavallo June 18, 2024 and GALA June 14

Inter alia, Introduces “audio-only content sharing platform service”

APPLICABLE REGULATION 

• Rules from the IAP Code (EN) and legislation in our earlier content section B apply to all media; audiovisual media services carry some specific content rules of their own, derived from the AVMS Directive and its amending directive 2018/1808 and transposed by LD 208/2021 (IT)
• Those rules, assembled from the directive here, or see the link above, apply beyond TV and Radio broadcast programmes into VOD and other online services, most recently, as a function of the 2018 Directive, into video-sharing platforms in particular
• The decree linked above also addresses 'channel' (i.e. placement) rules such as those for product placement and sponsorship as well as 'conventional' break TV advertising; see Chapter III, articles 46 and 48 for sponsorship and product placement respectively 
• The self-regulatory Code on Media and Minors applies to TV and is undersigned by all Italian broadcasters; Section 4 (EN) covers advertising. The code applies different levels of protection for minors according to the timeframe. The full code is here (IT)
• AGCOM Influencer guidelines (IT; GT EN translation here) issued in January 2024 classify some influencers one mil subscribers/ followers, 24 posts annually, 2%+ engagement as Audiovisual Media Services, making them equivalent to publishers under the 2021 AV law linked above. 

AV CONTENT RULES

Chapter III, LD 208/2021, art. 43

Extracts of the more general clauses. There are also clauses related to alcohol and to gambling

General principles: audiovisual commercial communications must be readily recognisable as such; surreptitious audiovisual commercial communications are prohibited. And must not: 

• Use subliminal techniques 
• Prejudice respect for human dignity 
• Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
• Encourage behaviour prejudicial to health or safety 
• Encourage behaviour grossly prejudicial to the protection of the environment 
• Cause physical or moral detriment to minors; they must not:

• Exhort minors to buy or hire a product or service by exploiting their inexperience or credulity
• Encourage them to persuade their parents or others to purchase the goods or services being advertised
• Exploit the special trust minors place in parents, teachers or other persons
• Unreasonably show minors in dangerous situations 

SPONSORSHIP
(Art. 46 of the LD)

• The content and scheduling of a sponsored programme must not be influenced by the sponsor so as to affect the responsibility and editorial independence of the media service provider

• Sponsored programmes must be clearly identified as such and the name or logo of the sponsor indicated at the beginning and end of the programme
• They must not encourage the purchase or rental of the goods or services of the sponsor or of a third party, in particular by making special promotional references to those products or services 
• Television and radio news programmes and political affairs programmes must not be sponsored
• The showing of a sponsorship logo during children’s programmes, documentaries and religious programmes is prohibited 

SECTION C TV/AV AND RADIO

EASA Jan 2024 update on the AVMSD

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
• The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

Article B12: Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation unless the sponsor is legally allowed to be the programme producer or co-producer, media owner or financier funder;
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online and in social media, including any influencer involvement material;
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved.

​

SECTION C: CINEMA, PRINT, OUTDOOR

• The Content rules in Section B above apply to the Cinema channel, except those rules that specify Broadcast
• The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found under the Sector rules in Content Section B
• The advertising of spirits (with more than 21% ABV) is prohibited in any form in cinemas during the projection of films aimed mainly at minors (Art. 13, Framework Law)
• Marcoms may not ‘target or refer to minors, even only indirectly… (Art. 22 IAP Code)
• Note the requirement from major producers to apply Responsible Consumption Messages in their advertising. See point 4.1 Content Section B
• The Channel rules that apply to all sectors, Alcohol included, are shown under the General tab below

SECTION C: CINEMA, PRINT, OUTDOOR

CINEMA

• The content rules set out in our earlier section B from the IAP Code (EN) and from legislation apply in all media, except those rules from the AVMS Code
• Rai Pubblicità is the SAWA (Screen Advertising World Association) representative in Italy. Contact them for any further information on cinema advertising in Italy:
  http://www.raipubblicita.it/

PRINT

• The content rules set out in our earlier section B from the IAP Code and from legislation apply in all media, with the exception of rules from LD 2018/1808, which apply to audiovisual media services 

OUTDOOR

• The content rules set out in our earlier section B from the IAP Code and from legislation apply in all media, with the exception of those rules set out in the AVMS Code

• The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here
• Use of billboards to 'dress' buildings which are in the process of being restored: companies are sponsoring the restoration of Italian historical monuments and therefore provide advertising banners to cover scaffolding etc. over the building. See Art. 49.3 Law on Cultural Heritage and Landscape. Under article 49.1, it is forbidden to place or post signs or other means of advertising on buildings and in protected areas as cultural assets. Restrictions are contained in:

• Law on cultural heritage and landscape Art. 49 LD 42/2004 IT
• Italian Traffic/ Highway Code (Codice della Strada) LD 285/92 IT Art. 23 Advertising on roads and vehicles
• Regulations for the implementation and execution of the Highway Code articles 47-49 refers to Art. 23 of Highway Code (DPR 495/92 IT)
• Regulations from municipalities will also apply

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable self-regulation and legislation 

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below, 2024 amends in italics. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
• The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
• In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below with 2024 amends)

Refer to Content Section B for provisions; of particular relevance below:

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
• Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
• Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
• Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
• In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

Annex I of the UCPD 

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

...........................................

Article B12 ICC Code Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation unless the sponsor is legally allowed to be the programme producer or co-producer, media owner or financier funder;
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online and in social media, including any influencer involvement material;
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved.

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

CONTEXT

• This particular section provides the broad picture for the commercial digital environment. More specific digital channel rules, such as those for email, marketers’ own websites etc. follow below this channel. As the boundaries online can be less clear, and as space online can be advertiser-owned, there’s greater focus on the identification of advertising/ marketing communications, as advertising is subject to the rules in owned and (some) earned space as well as paid
• The IAP Code of Marketing Communication (EN) states 'marketing communication shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used.'
• Non paid-for channels in Italy, such as marketers’ own websites and SNS spaces, are also covered by the rules. Specifics are included later in this section and in the link above, but the principle applied in paid space also applies in unpaid or owned space: if it’s a marketing communication, it’s covered

KEY RULES AND GUIDELINES

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Q&A: online advertising in Italy. ICT September 24, 2024

The DSA: Consequences of the use of digital advertising Dentons/ Lex Aug 30, 2022: implications for ad industry

Garante fines energy company 10 million euros (IT) Oct 23, 2023

CONTEXT AND SCOPE  

This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising important. The IAP version is ‘advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used’. 

GDPR 

In the context of these channels, the influence of legislation is significant, particularly on the use of personal data. GDPR’s impact is shown under particular channel sections where relevant; in broad, if processing personal data, lawful processing rules from the GDPR now apply. For guidance, we show below the most relevant Data Protection Authority - Garante - statements, together with EU documentation

Privacy issues should be reviewed with specialist advisors

1. SELF- REGULATION 

• IAP Code EN / IT for content rules 
• IAP Digital Chart IT / EN establishes criteria for the recognition of common forms of online marketing communications
• Marketing communications online are generally subject to the rules set out in our earlier content section B, with the exception of rules specific to broadcast advertising

2. LEGISLATION

• Data Protection Code (DPC) Legislative Decree No. 196 of 30 June 2003 IT; section 130 unsolicited commercial communications EN (text released 22.12.2021)
• In the context of e-Commerce/ an Information Society Service Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of servicesLegislative Decree 70/2003 e-Commerce law EN Information requirements articles 7, 8 & 9
• Consumer Code (CC) LD 206/2005 (EN inc. 2023 amends) applies to business-to-consumer commercial practices, as defined under article 18. The decree carries the rules from the UCPD 2005/29/EC and covers content-related issues such as misleading acts and omissions, including e.g. 'invitation  to purchase' (art. 22). Sanctions and distance selling rules, the latter particularly applicable to this channel, have been extracted and are shown here (EN)
• LD 208/2021 (IT) is the vehicle for the AVMS Directive as amended by Directive 2018/1808 which applies to 'audiovisual media services' and brings into scope video-sharing platforms (VSPS) in particular. Some scope explanation here, or see the linked directive

GUIDANCE 

The Italian Data Protection Authority Garante per la protezione dei dati personali is the independent authority established by the Personal Data Protection Code as responsible for monitoring application of the GDPR

• Garante Guidelines relating to promotional activity and the fight against spam, July 4 2013 Doc. No. 2542348 IT Garante trans EN Doc. No. 4304228
• Summary of these guidelines is also provided by Garante in “No to Spam, yes to consumer friendly marketing” 23/07/2013. Doc. 2554512 in English; Doc 2549317 in Italian
• Note: both of the above documents remain on the Garante website as at December 2023; the documents pre-date GDPR
• Guarantor guidelines various; this link takes you to the guidelines home page (IT)
• Guidelines on the processing of personal data for online profiling; March 2015 (IT)
• Guide to the application of the European Regulation on personal data protection February 2018 (IT)

Article 29 Working Party/ EDPB

Established by Article 29 of Directive 95/46/EC, hence the name. As of May 2018 the Article 29 Working Party was replaced by the European Data Protection Board (EDPB).  Nevertheless, WP29 papers/ guidelines remain valid. The 1997-2016 archive is here. Three key papers in this context are: 

• Article 29 Working Party Guidelines on consent under Regulation 2016/679 (May 2020)
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
• Guidelines 8/2020 on the targeting of social media users (April 2021)

• Reference LD 208/2121 above and its 'parent' Directive 2018/1808, there has been some discussion in regulatory circles whether a vlogger/ influencer constitutes an audiovisual media service. The definitive view and recommendation is in the 2021 ERGA paper Analysis and recommendations concerning the regulation of vloggers

1.1. Key clauses self-regulation

Ad labelling/ Identification

• IAP Code Article 7 (Identification): Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures
• Digital Chart IT / EN covering Endorsements (e.g. Celebrity/ Influencer/  Blogging, Vlogging) UGC, SNS; In-App; Advergame. This is the key document in this marcoms area. Scroll down in the IAP Digital Chart link to the sub-head that reads 'Digital Chart Regulations on the Recognisability of Marketing Communications Distributed over the Internet'. 

​

Endorsements/ Influencers (extract from Section 2 IAP Digital Chart)

• When a celebrity, influencer, blogger, or similar user of the Internet, whose actions might potentially influence the commercial choices of the public (hereinafter, collectively, “influencers”) accredits a product or a brand within their own content, as a form of marketing communication, one of the following labels must be clearly inserted at the beginning of the post, or in another message posted online:

“Pubblicità/Advertising”, or

“Promosso da … brand/Promoted by … brand” or

“Sponsorizzato da … brand/Sponsored by … brand”, or

“in collaborazione con … brand/In partnership with … brand”;

• And/ or within the first three hashtags of a post, provided it is clear and prominent, one of the following labels should be inserted:

• For contents available for “a limited time”, for instance the stories, one of the above labels should be superimposed in a clear and legible manner for any promotional content
• Conversely, should the relationship between the influencer and advertiser not be underpinned by an existing agreement, but consist merely in the advertiser occasionally sending the influencer its products free of charge or for a modest consideration, rather than the notifications stated above, posts or other messages distributed online in which the influencer mentions or represents these products must feature a disclaimer of the following type:

• “Product sent by… brand”, or equivalent
• As per the previous subsection, the advertiser must clearly and unequivocally inform the influencer when sending the product of the obligation to insert this disclaimer
• In such cases, the advertiser’s liability is circumscribed to informing the influencer of the obligation’s existence

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety, 

Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024

EASA on the above and two calls for tender August 8, 2024

Meta and self-regulation December 2023 

This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels, online included
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth platforms online; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (linked above): Direct Marketing and Digital Marketing Communications; extracts below under 'self-regulatory clauses'
• ICC Guide for Responsible Mobile Marketing Communications
• EASA Best Practice Recommendation on Digital Marketing Communications 2023
• EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

• Directive 2002/58/EC on privacy and electronic communications

• Directive 2000/31/EC on electronic commerce

• Regulation 2016/679/EU on the processing of personal data (GDPR) 

• Directive 2018/1808 amending AVMS Directive 2010/13/EU 

•  

Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.

Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts) 

2024 amends in italics; there are some 20 articles in this section of the code  

C2. Identification and transparency

• Marketing communications should be properly identified, as such in accordance with Article 7 of the General Provisions subject descriptors should be accurate and the commercial nature of the communications, as well as the identity of the marketer, should be transparent to the consumers in accordance with Articles 7-8 of the General Provisions. 
• Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
• Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
• Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

Article C3 – Presentation of the offer
 

The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions

C2. Identity of the marketer

• The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
• At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer

SECTION C: COOKIES AND OBA

COOKIES

• See cookie and OBA rules for all sectors, alcohol included, under the General tab below
• Cookies obviously may not be deployed to target/ track young people below LPA; article 22 of the IAP Code prohibits the targeting of minors

OBA

• Alcohol advertising does not attract rules that are particular to OBA/ alcohol but OBA, like any other advertising, is subject to the rules for consumption abuse, social and sexual aspects etc. as set out in the IAP Code Article 22 (EN), as well as the other content rules shown in section B, and of course the rules for all product sectors shown under the General tab in content section B
• Creating children’s segments (U12) in OBA is prohibited for all sectors, and alcohol rules require the avoidance of minors (U18s). Third party cookie placement is generally the responsibility of the advertiser or website owner - agreements/ contracts with ad networks should be checked; legal advice should be sought in matters of privacy in commercial communication
• Note the requirement from some major producers to apply Responsible Consumption Messages in their advertising. See point 4.1 Content Section B

SECTION C: COOKIES AND OBA

Q&A: online advertising in Italy. ICT September 24, 2024

COOKIES

Privacy Sandbox news and updates posted May 2024
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 

Privacy issues should be reviewed with specialist advisors

Legislation and guidance 

• Section 122 Data Protection Code DPC EN implementing the Cookie Directive 2009/136/EC;
• The introduction of the GDPR 2016/679 may mean that if/ when cookies identify individuals, GDPR lawful processing rules apply;
• The key EDPB guidance in this context is Guidelines on Consent under Regulation 2016/679 (May 2020);
• IAB Europe published also in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising;
• From ICAS' March 2022 newsletter: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here;
• IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN);  
• Garante/ GPDP published in July 2021 Guidelines for cookies and other tracking tools (IT) English version here. Compliance by January 10, 2022;
• There's a helpful commentary in English on the above from Martini Manna/ Lexo here; 
• See this significant piece from August 2022 The Garante warns against personalised ads based on legitimate interest by Orsingher Ortu Avvocati Associati/ Lex;
• And this Feb 2023 piece from CMS Italy/ Lex is a helpful catch-up with the EDPB cookie banner task force findings and potential implications in Italy;

• Important Garante case GALA October 6, 2023 re permissible period for data retention indicates new stance from regulator.

Key clause

• Under Article 122 (1) of the DPC linked above: the use of cookies is only permitted if the ‘contracting party’ (user) has been properly informed and has given his/ her consent, unless the cookie is strictly necessary to provide the service explicitly requested by the users i.e. technical, session, analytics, functional; these cookies must still be disclosed in the privacy notice. See the linked DPC above for the full clause

OBA

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising

William Fry/ Lex September 8, 2023. Connects with Meta news below 

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023

Meta’s Ad Practices Ruled Illegal Under E.U. Law. From the NYT Jan 2023

EU Rules on Online Targeted Advertising Covington Burling Aug 2022 on existing targeted ad rules and DSA (in force Jan 2024)

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19 January 2022

Profiling/ Behavioural cookies

• Prior consent of the data subject is required along with disclosure in an information/ privacy notice, i.e. opt-in consent; see Google case
• Under Doc. 3118884 (IT), separate consent must be obtained for third party cookies/ profiling. The third party cookie information must also be kept separate from the website owner’s first party cookie information (to prevent confusion)
• In order to maintain the distinction of the responsibility of website managers and third parties, the website operators should provide links to the web pages which contain the information and third-party cookie consent. Refer to foot of Cookie Guidance document 3118884
• Garante confirms that profiling cookies that are ‘persistent in nature’ should be notified (to Garante) - Sect. 5 Guidelines as per Art. 37 (g) DPC
• Profiling and Electronic Communications (EN). Decision by Garante dated 25 June 2009. Profiling performed on identifiable personal data is only allowed if – under Section 23 of the Code* – the data controller can provide written proof that the data subject had given his/ her informed, free, and specific consent thereto. The consent in question obviously also applies to the processing of aggregate personal data. * Note: GDPR lawful processing rules may now apply; see below
• From Article 29 WP (now the European Data Protection Board):
  Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 
• Garante guidelines on the processing of personal data for online profiling; March 2015 (IT)

SECTION C: COOKIES AND OBA

Consent or pay: one rule for some (large online platforms),

another rule for everyone else? Weil Gotshal & Manges 30/8/24

A new path for Privacy Sandbox on the web July 22, 2024

Third party cookie plans for Chrome. WFA view here 

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8

Applicable legislation, self-regulation and guidance 

Note that legislation is implemented in member states, sometimes with nuance 

• e-Privacy Directive 2002/58/EC, as amended by the ‘Cookie Directive’ 2009/136/EC
• The introduction of the GDPR 2016/679 from May 25, 2018 

• European Commission Data Protection website:
  https://ec.europa.eu/info/law/law-topic/data-protection_en

• IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era

• And in July 2021 the Guide to Contextual Advertising

• Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR

As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC

• Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• There are no rules that are specific to (direct) electronic communications and alcohol; as with other alcohol advertising, Email, SMS etc. are subject to the content rules set out in our earlier section B, largely those from the IAP Code Article 22 (EN), together with the Content rules that apply to all product sectors shown under the General tab in section B
• Electronic communications, along with any other form of commercial alcohol brand communication, may not target minors (IAP Code)
• Statutory consent and information requirements when sending commercial electronic communications to customers and potential customers is covered for all product sectors, alcohol included, under the General tab below
• Note the requirement from major producers to apply Responsible Consumption Messages in their advertising. See point 4.1 of our content section B

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

(DIRECT) ELECTRONIC COMMUNICATIONS INC SMS/MMS

• Marketing communications via email/ SMS/ MMS are subject to the content rules set out in section B, except those that are specific to broadcast; the principal content rules are from the IAP Code (EN)
• In legislation, the core content regulations are from the Consumer Code LD 206/2005 EN, which covers misleading and aggressive commercial practices, including advertising (see below)
• If associated data processing involves personal data (that which identifies individuals), lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
• In this Channel rules context, the main regulatory issues are from legislation that deals with Consent, Identification and Information requirements. Details below

LEGISLATION MOST RELEVANT TO THIS CHANNEL 

• The General Data Protection Regulation 2016/679 applied directly in EU member states from 25 May 2018
• Nationally, the Personal Data Protection Code (DPC) article 130 EN; the DPC was amended in August 2018 to ‘recognise’ GDPR
• e-Commerce Law LD 70/2003; information requirements articles 7, 8 and 9 EN
• Consumer Code (CC, EN) LD 206/2005 applicable to ‘business-to-consumer commercial practices’ i.e. ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (Section 18d CC). The Consumer Code has a broad remit, therefore. In this context, most relevant clauses Section 26 (e.g. harassment clause shown below at the base of this section) and sections 22 and 23 re misleadingness 
• Sanctions and distance selling rules from the CC have been extracted and are shown here (EN)
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

GARANTE GUIDANCE 

• Garante guidelines relating to promotional activity and the fight against spam, July 4 2013 Doc. No. 2542348 IT, Garante EN Doc. No. 4304228
• Summary of above guidelines: ‘No to Spam, yes to consumer friendly marketing’ 23/07/2013 Doc. No. 2554512 EN; Doc. No. 2549317 IT
• Resolution on consent in the use of personal data for 'direct marketing' purposes, by conventional and automated means May 15, 2013; DPA Decision 2543820 EN / IT 
• How to lawfully Email advertising messages (IT)
• Note: the above are relatively old documents and may not be fully consistent with GDPR lawful processing rules, but remain on the Garante website as at December 2021
• Garante guidelines various; this link takes you to the guidelines home page (IT)
• See this significant piece from August 2022 The Garante warns against personalised ads based on legitimate interest by Orsingher Ortu Avvocati Associati/ Lex.

CONSENT/ EDPB GUIDANCE 

• If consent is the basis for lawful processing, the optimum source for guidance for consent under GDPR is from the Article 29 Working Party (now the European Data Protection Board)
  Guidelines on consent under Regulation 2016/679 (May 2020)
• EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)

KEY CLAUSES

Section 121 (m) of the DPC: electronic mail is defined as any text, voice, sound or image message sent over a public communications network, which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient

• Opt-in: use of email, MMS or SMS-type messages, addressed to both individuals and companies for the purposes of direct marketing or sending advertising materials, are only allowed subject to obtaining the prior consent of the consumer or business (based on Section 130 (2) DPC)
• If the marketing communication is in an e-Commerce context, i.e. relating to an Information Society Service Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services, information requirements from Articles 7, 8 and 9 of the e-Commerce Act LD 70/2003 (EN) apply
• From the above, the marcom must clearly identify the sender and must be clearly identifiable as such. The recipient must also be informed that he/ she may object to the receipt of such communications in future
• In the case of a promotional offer, with discounts, prizes or gifts, or promotional contests or games, 'conditions of access' and 'terms of participation' must be made available (Art. 8 of LD 70/2003, transposing Art. 6 of Directive 2000/31/EC)
• The service provider must make company information 'easily, directly and permanently accessible to the recipients of the service and competent authorities.' See Art. 7 LD 70/2003 for required information
• It is prohibited to send direct marketing emails which disguise or conceal the identity of the sender and do not provide a suitable address to enable the user to opt-out (Art. 130 (5) DPC)
• If the communication constitutes an ‘Invitation to Purchase' Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase certain information must be provided, especially that related to price. Article 22 of the Consumer Code LD 206/2005 (EN) applies. This is a transposition of UCPD 2005/29/EC article 7 here

SOFT OPT-IN 

• Under Section 130 (4) DPC, where a data controller collects a customer’s email details in connection with a sale of a product or service and uses these details for direct marketing of its own products and services, consent of the user is not required provided that:
   

• The products or services promoted by email are similar to those previously sold to the data subject
• The data subject was previously informed that his/ her email address would be used for marketing purposes, and does not object to said use either initially or in the course of subsequent communications
• At the time that the data was initially collected and on the occasion of each subsequent communication, the data subject must be informed of the possibility to object to the processing of his/ her data for marketing purposes, through simple means and without incurring any costs

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark 

Posted June 2024

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications; General Provisions of the ICC Code will also apply
• Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
• Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
• GDPR may apply if processing personal data; check privacy issues with specialist advisors 
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

SECTION C: MARKETERS' OWN WEBSITES

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. The IAP Code states that the term "marketing communication" shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used.

KEY RULES AND GUIDELINES

• Marketers' own marcoms on their own websites are subject to the rules set out in content section B - both sector and general rules - except those that identify broadcast media, which are anyway in large part covered in the IAP Code Article 22 (EN), which applies to all media
• Marcoms must not target or refer to minors, even only indirectly …. (Art. 22 IAP Code)
• The same principles (of scope, i.e. whether advertisers’ own SNS are subject to the rules) apply to manufacturers’ own social media spaces. The key issue is what constitutes a commercial communication, the rules for which are established under the General tab below, and referenced in the introduction above
• Exemptions are best explained in the EASA Digital Marketing Communications Best Practice document; those include User Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications
• The amendment of the AVMS Directive by Directive 2018/1808, transposed in Italy by Decree 208/2021 (IT), establishes the extension of AVMS rules further into the online environment and to video-sharing platforms in particular. This means that the alcohol-specific rules under articles 43 and 44 (9) of the decree apply in those platforms and in other 'audiovisual media services' as defined. Some background on scope from the Directives here
• Further to the above, as 'vlogging' may constitute an audiovisual media service, and as influencers are at the forefront of regulatory debate, the European Regulators group ERGA 2021 paper Analysis and recommendations concerning the regulation of vloggers, as the optimum view of this territory, may be helpful
• The IAP Digital Chart (EN) is an important regulatory influence in the context of marketers’ own websites, as it sets out how to ensure that e.g. influencer marcoms are correctly identified as such, in compliance with Article 7 Identification Article 'Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations' of the IAP Code of Marketing Communication. Details are under the General tab below, or see the linked Digital Chart (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’)
• Also significant from the general channel rules below are the statutory consent and information requirements that apply to direct electronic communications/ e-commerce; these are likely to apply when advertisers communicate with consumers/ website users. Cookie rules from an earlier header in this section will also apply

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the IAP Code here Definition ‘Advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used, as well as forms of communication regulated by Title VI.’ (Charity appeals). Clearly, much content on owned websites won’t be advertising; for exemptions, e.g. UGC, see the EASA Recommendation linked below for some non-binding guidance. The IAP’s Digital Chart is also important in this context, as it explains disclosure/ recognisability requirements for various forms of website marcoms. Issues arise from the introduction of the GDPR: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors

SELF-REGULATION 

• IAP Code EN / IT Title I; in particular in this context, article 7 Identification; and Title II, article 18 Distance Selling, albeit the code applies to advertising online generally and as identified above in owned websites 
• IAP Digital Chart IT / EN covering Endorsements e.g. Celebrity/ Influencer/ Blogging, Vlogging, UGC, SNS, In-app, Advergames etc.
• EASA’s Best Practice Recommendation Digital Marketing Communications 2023 establishes some exemptions such as User-Generated Content (unless endorsed by the marketer), under Section 2 of the linked document

KEY CLAUSES SELF-REGULATION

• IAP Code Article 7 Identification: Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations 
• IAP Digital Chart: for clauses, see the earlier Online Commercial Communications header in this Section C, or the linked code (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’). Two relevant articles extracted below:

• If a video produced and disseminated online are of a marketing communication nature, a prominent written disclosure must be inserted in the description of the video and in its opening scenes, that makes the promotional end-purpose of the video evident (by way of example: “brand presents…”, or “in partnership with… brand”)
• In a live stream these warnings, even verbal, should be repeated periodically. In particular, the public must be informed about the inclusion of an advertiser or the videomaker’s products/brands for promotional purposes through ad hoc disclaimers in the video’s opening and closing shot, or when the products/brand feature in shots
• Should on the other hand the relationship between the videomaker and advertiser not be underpinned by an existing agreement, but consist merely in the advertiser occasionally sending its products free of charge or for a modest consideration, and these products are mentioned, used or framed in the video, the videomaker must feature a written or verbal disclaimer of the following type: “this product was sent to me by…”, “product sent by…”.
• As per the previous subsection, the advertiser must clearly and unequivocally inform the influencer when sending the product of the obligation to insert this disclaimer. In such cases, the advertiser’s liability is circumscribed to informing the influencer of this obligation’s existence

• The promotional nature of an advergame must clearly be stated through the use of specific descriptors: “Promoted by … brand/ Promosso da … brand”, or “Sponsored by … brand/ Sponsorizzato da … brand”.
• These descriptors must be placed within boxes at both the beginning and end of the game

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

Directive 2005/29/EC on unfair commercial practices (UCPD)

Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)

EASA Best Practice Recommendation on Digital Marketing Communications 2023

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

SECTION C: NATIVE ADVERTISING

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. The ICC’s Guidance on Native Advertising is linked and also shown under the General tab below. The IAP Digital Chart (EN) defines Native’s objective as  ‘framing the advertising message within a given context, using content that takes on the appearance of original (‘native’) content on the hosting platform in order to capture the audience’s interest. It is a form of marketing communication that seeks to establish engagement with users within a less ‘intrusive’ perspective

• The ‘Native’ form of advertising is like any other alcohol advertising or any sector’s advertising – it’s subject to the content rules set out in our earlier section B, which apply to all forms of native advertising. Those rules are largely from the IAP Code of Marketing Communication, article 22 for alcohol-specific requirements
• The IAP Digital Chart also linked above covers the key issue of identification of various forms of native advertising in some depth. Rules are set out below under the General tab as they apply to all sectors, or see the linked code (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’)
• The IAP Code prohibits the targeting of minors; the Framework Law prohibits in article 13 (5) the advertising of spirits in any form ‘in the daily and periodic press targeted at minors’
• Major producers require Responsible Consumption Messages in their advertising. See point 4.1 content section B

SECTION C: NATIVE ADVERTISING

CONTEXT

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'

SELF-REGULATION

IAP Code of Marketing Communication Self-Regulation EN / IT 

IAP Digital Chart IT / EN Native: in-feed units, paid search units, recommendation widgets

• Key is article 7 IAP Code: Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations (linked above as IAP Digital Chart)
• Rules for some native forms are shown below from the IAP Digital Chart. Or see the linked document (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’)

SECTION C: NATIVE ADVERTISING

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below

ICC Advertising and Marketing Communications Code (EN 2024)

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here

And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.' 

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

Identification and transparency (Art. 7)

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
• Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
• Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
• Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
• In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

Unfair Commercial Practices Directive 2005/29/EC, Annex I

Commercial practices which are in all circumstances considered unfair

• 11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC

• 22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

Following feedback, we no longer cover Telemarketing 

Following feedback, we no longer cover Telemarketing 

Following feedback, we no longer cover Telemarketing 

SECTION C: DIRECT POSTAL MAIL

• The content rules for alcohol set out in our earlier section B, together with the rules for all sectors under the General tab in section B, will apply; the AVMS rules shown in section B will obviously not apply 
• Statutory consent and Information requirements when sending direct mail communications to customers and potential customers are covered for all product sectors, alcohol included, under the General tab below
• When commercial communications constitute an 'Invitation to Purchase', specific information is required. Again, details under the General tab below 
• The IAP Code Article 22 forbids the targeting of minors in alcohol marketing communications; any data processing ‘behind’ any mailshot should be mindful of this requirement
• Major producers require Responsible Consumption Messages in their advertising. See point 4.1 content section B

SECTION C: DIRECT POSTAL MAIL

REGULATIONS MOST RELEVANT TO THIS CHANNEL 

• The rules set out in content section B apply to commercial communications in Direct Postal Mail, except those specific to online and to broadcast. Principal source of rules is the IAP Code of Marketing Communication (EN)
• In legislation, the Consumer Code (EN inc. 2023 amends) is applicable to ‘business-to-consumer commercial practices’ as defined under article 18. The decree carries the rules from the UCPD 2005/29/EC and covers content-related issues such as misleading acts and omissions, including e.g. 'invitation  to purchase' (art. 22). Sanctions and distance selling rules, the latter particularly applicable to this channel, have been extracted and are shown here (EN)
• The introduction of the GDPR 2016/679 from May 2018 may impact on processing operations: if the mailing database involves the processing of personal data (i.e. data that can identify an individual), then it may be subject to GDPR lawful processing rules. Privacy issues should be reviewed with specialist advisors
• The Data Protection Code (DPC; EN), amended in August 2018 to incorporate elements of the GDPR, applies
• DPA Decision Doc. No. 1526724 (IT) extends the 'Soft Opt-in' principle established in Section130 (4) of the DPC to Direct Mail

KEY CLAUSES

• The opt-out system established in article 130 (3) for telemarketing has been extended (Decree Law 70/2011) to incorporate Direct Mail advertising. This means that when data (i.e. postal addresses) are processed from printed and electronic telephone directories for the purposes of marketing by direct mail, it will not be necessary to obtain prior consent from the user/ contracting party provided that their address is not on the opt-out register
• As with telemarketers, companies will be able to carry out marketing activities by postal mail provided they subscribe to the opt-out register and cleanse/ match their lists against the register to ensure that they do not contact those users/ contracting parties who have registered an objection
• Soft Opt-in: Definition The law allows the data controller to use the address already provided by the party concerned (company/ individual) for direct marketing of the own products or services, provided the products are similar to those previously soldDPA Decision 19/06/2008 (IT) allows the use of ‘soft spam’ in the context of direct mail as per provisions from Section 130 (4) DPC in the context of email marketing. It is permitted to send direct marketing mail if a commercial relationship already exists 
• Where a data controller collects a customer’s postal address in the context of a sale of a product or service and uses that address for direct marketing of its own products and services, consent of the user/ contracting party is not required provided that:
   

• The products or services are similar to those previously sold
• The interested party (individual/ company) has been adequately informed of the possibility not to receive further commercial communications either at the point of initial contact or via subsequent communications
   

• This same principle has been re-iterated in the Guide 'Privacy: working with business' issued on 28 May, 2013 (see 2nd column, p.14) here (IT)
• Counsel have concluded that whilst the Garante has not (expressly) excluded the extension of the soft-spam exception to postal marketing, a cautious approach would still be recommended in this regard; check with advisors

​

INVITATION TO PURCHASE

Article 22 of the Consumer Code (EN)

In the case of an invitation to purchase Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase the following information shall be regarded as material, within the meaning of paragraph (1), if not already apparent from the context:

1. The main characteristics of the product, to an extent appropriate to the medium and the product
2. The geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
3. The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable by the consumer
4. The arrangements for payment, delivery, performance and the complaints handling policy, if they depart from the requirements of professional diligence
5. For products and transactions involving a right of withdrawal or cancellation, the existence of such a right

SECTION C: DIRECT POSTAL MAIL

Applicable self-regulation and legislation 

​

• National 'Robinson lists' or opt-out lists
• The General Data Protection Regulation 2016/679 for the processing of personal data
• Directive 2005/29/EC on unfair commercial practices (UCPD)
• ICC Advertising and Marketing Communications Code (EN 2024)

• For content rules, refer to the earlier content section B. The principal source of general international content rules is the ICC code linked immediately above, most of which content rules apply to all channels
• The UCPD referenced and linked above will also apply to direct postal mail; this legislation provides a broad framework regulating commercial practices of all kinds; articles 6 and 7 establish regulation of misleading actions and misleading omissions respectively 
• Channel rules in this international context are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• There isn't really a common set of self-regulatory general channel rules that cross borders for direct postal mail (largely a market activity), though article 22 (data protection and privacy) of the iCC Code linked above comes closest, but there is a common principle: unless you have consent to process their personal data and send them material, in other words they have 'opted in', you can't send consumers marketing communications. Postal mail to e.g. 'the occupier' of individual addresses, is generally permitted, though some countries have arrangements whereby local communities display signs preventing, or trying to prevent, delivery.
• From legislation, the GDPR will apply if processing personal data (that which can identify an individual)

SECTION C: EVENTS/ SPONSORSHIP

• There are no channel rules from authorities specifically for sponsorship of events by alcohol brands; the general requirement to avoid targeting minors will apply
• Additionally, ‘Direct or indirect advertising of alcoholic beverages may not be shown in places primarily attended by minors' (U18s) (Art. 13.3 Framework Law)
• Alcohol industry association rules require that the ‘70-30’ rule is observed, i.e. the audience or likely audience must comprise at least 70% adults
• Any associated promotional literature/ material should observe the content rules - both sector and general - set out in section B
• Major producers require Responsible Consumption Messages in their advertising. See point 4.1 content section B
• General sponsorship rules, applicable to all product categories, are shown below under the General tab 

SECTION C: EVENTS/ SPONSORSHIP

Ambush marketing: the European summer of sport. Taylor Wessing May 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush. Lewis Silkin 25 Jan, 2024

Spotlight: organisation and commercialisation of sports events in Italy. Sports Generation/ Lex September 2022

First Enforcement of Law Decree No. 16/2020 on Ambush Marketing by the Italian Competition Authority against Zalando (EN)

from Portolano Cavallo/ Gala/ Mondaq May 9, 2022

More on the law here from Bird&Bird June 2020 and the law itself is here (IT)

• There is no sponsorship code per se in Italy
• Sponsorship material should observe the content rules set out in section B; principal source of rules is the IAP Code of Marketing Communication (EN)
• Some product categories, such as alcohol, will be restricted to adult audiences by general clauses on the avoidance of minors. See relevant sectors on the Wikiregs main website/ HP
• ICC Sponsorship rules are a solid ‘catch-all' for sponsorship activity nationally and internationally; see Chapter B of the ICC Advertising and Marketing Communications Code (EN); extracts below

 B1. Principles governing sponsorship

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

B2. Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement

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B3. Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

B4.  “Ambushing” of sponsored properties

• No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

SECTION C: EVENTS/ SPONSORSHIP

Pilot Project Relaxes Olympic Games' Rule For Participating Brands

Marks & Clerk July 19, 2024 

Paris Olympics & Paralympics - Part 2: What could possibly go wrong?

Squire Patton Boggs july 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

• Advertising associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier content section B, or from the ICC Code linked below 
• ICC Advertising and Marketing Communications Code (EN 2024): Chapter B Sponsorship. 2024 amends in italics 

B1: Principles governing sponsorship

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party
• Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
• There should be clear communication about the specific rights available for sponsorship from the rights holder, including the timing of the sponsorship commitment and the scale of coverage, such as territory. Sponsored parties should retain the sole discretion to determine the value of the sponsorship rights they offer and the suitability of a potential sponsor
• Furthermore, both parties should reserve the right to terminate the sponsorship agreement based on the terms outlined in the contract

B2: Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided as long as the sponsored party fulfills the obligations set out in the sponsorship agreement  meets the requirements set in the sponsorship agreement and those actions do not damage the reputation of the sponsor

B3: Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
• Both sponsors and sponsored parties, along with anyone else involved, should avoid imitation of other sponsorships if it could mislead or cause confusion, even with non-competing products, businesses or events

SECTION C: SALES PROMOTIONS

CONTEXT

This website was created to provide national and international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially mechanics and retail legislation. However, in the course of extensive research in marketing, relevant rules are included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below, both in the sector rules and the rules that apply to all product sectors, shown below under the General tab

KEY RULES

• The IAP Code Article 22 for all alcohol requires inter alia that In particular, marketing communications must not encourage excessive, uncontrolled, and hence harmful consumption of alcoholic beverages
• Any associated promotional literature/ material should observe the content rules set out in section B, both the sector-specific and general rules, the latter shown under the General tab in section B 
• Major producers require Responsible Consumption Messages in their advertising. See point 4.1 in our content section B
• Rules that apply to all sales promotions/ promotional marketing, those for alcohol included, are set out below under the General tab; these include, for example, statutory requirements when running promotions or competitions, or when communicating price in a promotional context
• All the regulators confine events or activities to places and media where the preponderance of participants/ audience (70% +) is adults

SECTION C: SALES PROMOTIONS

Manifestazioni a premio: nuove FAQ pubblicate dal Ministero delle Imprese e del Made in Italy
Lexia Avvocati February 28, 2024

CONTEXT 

This website was created to provide international rules on marketing communications; we do not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation, or law on the mechanics and administration of promotions. Italy in particular has some intricate legislation that we show below, but which we recommend be managed/ interpreted by specialist advisors. Self-regulatory codes and consumer protection legislation relating to promotional pricing is also shown below.

Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal;

sales promotional material should observe the rules set out under the earlier content section B 

LEGISLATION 

• Article 8 e-Commerce Law EN (LD 70/2003) applies to promotions advertised online, which must:

• Be clearly identifiable as a commercial communication
• Clearly identify the person or legal entity on whose behalf the commercial communication is sent
• Provide details of any promotional offers such as discounts, prizes and gifts and their terms and conditions
• Provide details of any promotional competitions and games, where permitted and their conditions of participation

• Consumer Code EN LD 206/2005; Legislative Decrees No. 145/2007 and 146/2007, implementing Directives 2006/114/EC and 2005/29/EC on misleading and comparative advertising and unfair commercial practices respectively. The Code sets out those commercial practices that will be considered unfair in all circumstances (Art. 23), and aggressive commercial practices in articles 24-26 inclusive

Promotional pricing

See also pricing requirements under Point 3.2 in our content section B

• From article 23 of the Consumer Code; commercial practices which in all circumstances are misleading (relevant extracts only):

e) Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

f) Making an invitation to purchase products at a specified price and then:

1. Refusing to show the advertised item to consumers, or

2. Refusing to take orders for it or deliver it within a reasonable time, or

3. Demonstrating a defective sample of it with the intention of promoting a different product (bait and switch)

g) Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

• In the context of prize promotions, the following is an aggressive commercial practice: Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either there is no prize or other equivalent benefit, or taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost (Art. 26 (h) Consumer Code)
• New promotional pricing/ price reduction rules were established in Directive 2019/2161, which amended Directive 98/6/EC (the Product Pricing Directive), provisions transposed in Italy by LD No.26 of March 7, 2023 (IT) into the Consumer Code, article 17. The rules are set out in English here

Additional prize promotions legislation 

• Decree of the President of the Republic of 26 October 2001 No. 430 (DPR); Ministry Decree 2010/19313/Games/LTT of July 5th 2010; see also links section E for complete list of regulations relevant to sales promotions
• DPR 430/2001 regulates both Prize Contests/ Competitions (Concorsi a premio) and Prize Operations (Operazioni a premio). Prize contests/ competitions operate by means of chance or skill, whilst prize operations award a prize to all those who purchase or sell a particular product or a certain quantity of products