SECTION A OVERVIEW

Updates since June 2022

Draft General AV law (ES) approved June 2022

July 2022 General AV Law 13/2022 of 7 July (ES)

General Advertising Law 34/1988 ES / EN

New clauses above in force October 2022

Confianza Online Ethical Code EN Oct 2022

Greenwashing and Spanish laws. Osborne Clarke

AEPD updates Cookies Guide (ES). July 2023

Data Processing in Advertising Activities 

EN version released by AC October 5, 2023

Draft Decree (ES) on Influencer regulation the requirements to be considered a user of special relevance for the purposes of the provisions of Law 13/2022

Above from the Ministry consultation closed Dec 20, 2023

See below under Issues/News. Decree approved 

Register for AV Service Providers. GALA Jan 8, 2024

AEPD 2023 Activity Report (ES) April 2024

The above Google Translated here

RD 444/2024 (ES) of April 30 approved

Government regulatory plan 2024 (ES)

The above Google Translated here

DLA Piper Environmental Advertising Claims Guide 

Above from August 7, 2024 includes Spain

New ICC Code September 19 2024 (EN)

Autocontrol newsletter October 2024 (ES)

SOME RECENT DEVELOPMENTS

CSRD: practical aspects re sustainability report
Garrigues November 5, 2024

The future of eco-labelling in the Spanish market
Bird & Bird. November 12, 2024

Spanish govt. proposes new digital safeguard measures for minors
Osborne Clarke July 24, 2024 (EN)

Legal Battle in the Spanish Energy Sector Over 'Greenwashing' Claims

GALA April 2, 2024. Iberdrola v Repsol 

RD 444/2024 (ES) of April 30 approved by council of Ministers

Re Influencers. Details below under channel rules/ AV header

SELF-REGULATION 

The Spanish Self-Regulatory Organisation Autocontrol's main code is the Code of Advertising Practice (EN), the applicable Spanish version here. The code closely reflects national legislation and is based on and inspired by the ICC Advertising and Marketing Communications Code (EN 2018; 2024 code here), which is indirectly applicable; Explanation the Autocontrol Code’s General Rules (Point 8) state that the Jury will resolve complaints by applying the Code of Practice... subsidiary to the above-mentioned standards, the ICC Code shall also be applied. Autocontrol’s Advertising Jury applies the code, which is compulsory for members of Autocontrol and voluntary for others. 

Autocontrol also manages 21 sectoral advertising codes, list here. Of most relevance to the general advertising rules is the Confianza Online Ethical Code ES. The link is to the applicable February 2023 Spanish version, the 2015 version having been amended in light of GDPR and the 2021 version also amended. Unofficial and non-binding translation of the key provisions here. To follow. The code covers ‘electronic distance communications media’ and requires observation of a) the law and b) the Autocontrol Code of Practice linked above and is enforced by Autocontrol’s Advertising Jury; more background here.

A code of conduct on the use of Influencers in advertising entered into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. A March 2021 decision (ES) by the Autocontrol jury found transgressions in Samsung-inspired posts on Instagram. There's helpful commentary on this case from Bird & Bird via Lexology here (EN). This is an important case as it addresses the validity in Spain of the term #ad as an identifier, considered by the jury to be not necessarily understood by Spanish readers. The key rule is para 5 of the linked Influencer code. 

LEGISLATION IN CONTENT 

The EU Directives on unfair B2C commercial practices UCPD 2005/29/EC and misleading and comparative advertising MACAD 2006/114/EC will apply in parallel and without limitation to the advertising of any sector. Background note here. At national level, the following laws carry the EU requirements:

- Law 3/1991 on Unfair Competition EN / ES (inc. 2022 amends)

- Law 34/1988 on General Advertising EN / ES (inc. 2022 amends)

- Law 7/1996 on Retail Trade EN / ES, which principally affects sales promotions and

- Royal Legislative Decree 1/2007 ES  (2022) in particular Article 20 (EN) inc. information requirements for an ‘invitation to purchase’

Law 34/1988 on General Advertising, which covers broader aspects of advertising in society such as the portrayal of stereotypes and the protection of children, and Law 3/1991 on Unfair Competition, are Spain’s principal advertising laws. See also Q&A: misleading advertising practices in Spain from Jacobacci Abril/ Lex of March 12, 2024 and In brief: prohibited and controlled advertising in Spain from the same busy company, same date.

SECTION B CONTENT RULES

1. SELF-REGULATION

1.1. Autocontrol’s General Code of Advertising Practice

A. Basic principles

B. Authenticity

C. Principle of truthfulness 

D. Rules on certain advertising forms and techniques

E. Protection of Children and Adolescents

F.  Health protection

G. Advertising of credit institutions

Autocontrol Jury Decisions 

1.2. Confianza Online Ethical Code

2. LEGISLATION

2.1. General Advertising Law 34/1988

2.2. Law 3/1991 on Unfair Competition

2.3. RLD 1/2007 General Consumer & User Protection Act

2.4. Broadcast content rules from the General AV Law 13/2022

3. SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.1.1. National self-regulation, including AC resolutions

3.1.2. International self-regulation

3.1.3. Horizontal legislation

3.1.4. EU guidance

3.1.5. Comparative claims

3.2. Pricing

3.2.1. Self-regulation

3.2.2. Legislation

3.2.4. Case law

​

1.1. Autocontrol’s General Code of Advertising Practice EN / ES

I. Scope of application 

• These ethical rules apply to all of advertising communication aimed at promoting, directly or indirectly and regardless of the means, format, or media used, the contracting of goods and services, or the enhancement of trademarks and trade names. These ethical rules will also be applicable to any advertisements commercial communications (sic) released on behalf of private individuals or legal persons, in order to promote certain attitudes or behaviours. These rules will not apply to political advertising

II. Ethical rules. A. Basic principles

1. The Value of advertising: No commercial communication may be made in such a way that it negatively affects the social perception of advertising, undermines consumer confidence, or impairs its importance in ensuring the proper functioning of the market
2. Respect for Law and the Constitution: Commercial communications shall respect legislation in force, and in particular the values, rights and principles enshrined in the Spanish Constitution
3. Interpretation of advertising
4. Good faith: Commercial communications must never constitute a means to abuse the good faith of the consumer
5. Exploitation of fear: Commercial communications must not, without justification, provide reasons for purchasing which take advantage of fear, apprehension, misfortune, suffering or superstitions of those to whom it is addressed. Among other examples, advertisers may make use of fear, as long as it is proportionate to risk or adversity, in order to encourage prudent behaviour or to discourage dangerous, imprudent or unlawful actions
6. Non-incitement to violence: Commercial communications shall not Incite or condone violence nor will they suggest advantages in violent attitudes or practices
7. Non-incitement to unlawful behaviour: Commercial communications must not incite antisocial or unlawful behaviour, nor will it be tolerant of those aspects, nor will they suggest that there are advantages in antisocial or unlawful attitudes or behaviours
8.  Respect good taste: commercial communications must not include any content which runs contrary to the prevailing standards of good taste and social decency, as well as against good customs
9. Dangerous practices and safety: Commercial communications must not encourage dangerous practices except when made in a context in which it may be specifically deduced that it promotes personal safety or that of others. Advertising addressed to children should not contain any visual representation or description of potentially dangerous practices or situations that show a disregard for safety
10. Discriminatory advertising: Commercial communications must avoid endorsing discrimination based upon race, nationality, religion, disability, age, gender or sexual orientation; neither must they prejudice a person’s dignity. In particular, advertising commercial communicationsthat can be degrading or discriminatory towards women must be avoided, including those which use the woman's body, or parts thereof, as a mere object detached from the product or service that is intended to be promoted, or associated with stereotypical behaviours that undermine equality between women and men
11. Right to honour: advertising must necessarily respect the rights to honour, privacy and personal image
12. Respect for the environment: commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour

B. Authenticity

​

13. Commercial communications will be identifiable as such, regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labeled as such. That the real intent is advertising must be obvious. Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis

C. Principle of truthfulness 

14. Misleading advertising

14.1. Commercial communications must not be misleading. Misleading advertising is understood as the one (sic.) that in any way deceives or is likely to deceive its recipients, and is liable to alter their economic behaviour, provided that it has an impact on one of the following elements:

1. The existence or nature of the good or service
2. The main characteristics of the good or service, such as its availability, benefits, risks, execution, composition, accessories, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product
3. After-sale customer assistance and complaint handling
4. The extent of the entrepreneur's or professional's commitments, the motives for the commercial practice and the nature of the commercial transaction or contract, as well as any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or professional or the goods or services
5. The price or the manner in which the price is calculated, or the existence of a specific price advantage
6. The need for a service, part, replacement or repair, and the change of the initially advertised price, unless there is a subsequent agreement between the parties agreeing to such change.
7. The nature, attributes and rights of the entrepreneur or professional or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions
8. The consumer’s rights or the risks he may face

14.2. Likewise, it will be regarded as misleading, the advertising which omits information necessary for the recipient to make or be able to make a prior informed decision on his economic behaviour, and for this reason can significantly distort their economic behaviour

14.3. For the purpose of applying the previous paragraph, all the characteristics and circumstances of the advertisement, as well as the limitations of the medium of communication used, must be taken into account. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the entrepreneur or professional to make the necessary information available to consumers by other means shall be taken into account, in deciding whether the information has been omitted

D. Rules on certain advertising forms and techniques

Guarantees/ delivery/ technical data/ comparative tests/ testimonials

15. Guarantees: Commercial communications must not contain any reference to a guarantee that does not improve the legal position of the purchaser. Advertising may contain the words "guarantee" (“garantía"), "guaranteed" ("garantizado"), "certified" ("certificado") or words having the same meaning, provided that it does not deceive or is not likely to mislead the consumer regarding the scope of the guarantee
16. Availability of products: Goods or services that cannot be supplied or provided shall not be offered, unless the advertisement indicates the moment or time-scale for the delivery or service
17. Technical data:Where technical, scientific or statistical data are disseminated in advertising, they must be relevant and verifiable; they shall not give rise to error on the natural or legal persons, their nature and other circumstances that support them 
18. Comparative tests: Publication of comparative tests on products or services must reveal the identity of the individuals and legal entities that have carried them out, as well as the date on which they were carried out. In the event of partial dissemination, this shall be done in an equitable manner
19. Testimonials: When commercial communications include recommendations and/ or testimonials, that are assertions from parties not connected to the advertiser and who are not acting as spokespersons for the advertiser, whether they are paid or not, they must be truthful, both with regard to the person providing the recommendation/ testimonial, as well as to the content of the recommendation and/ or testimonial.The advertiser must have written authorisation of the testimonial and it is his responsibility to prove the veracity of the advertisement. Such advertising may only be used as long as the above conditions remain valid. The sponsored nature of a recommendation or testimony must be made clear by an appropriate warning in those cases in which the message, due to its formal characteristics or content, may mislead the user about the said nature
    
    See further note on testimonials here

Autocontrol jury decisions

To be updated

• Jury judgment; decision of 24.05.2012 Glaxo vs. Colgate (Sensitive Pro Alivio) confirmed by the Full Session on 21 June 2012 ES Infringed Article 14 (Principle of Truth) and Article 21 (Denigration) and Article 3.1 Confianza Online Code for saying that the product was new, when it had been available on the market for almost 2 years
• Jury Judgement; decision 29.05.2016 Glaxo & Henkel vs Colgate ES the expression ‘Colgate Total, the Dentist's Choice’ ('la elección del dentista'). From the viewpoint of the reasonably attentive and perceptive, normally informed, average consumer, the Jury understood the slogan to convey two distinct messages: that Colgate Total is the toothpaste most used by dentists and that dentists recommend the use of Colgate Total. Colgate under the Principle of Truth was obliged to prove the accuracy of the statements, which it could not

Comparative advertising 

20. Exploitation of the reputation of others and Imitation:

• Commercial communications shall not contain either explicitly or implicitly, any reference to the distinctive signs of another advertiser, other than in legal or conventionally permitted cases or in the case of acceptable comparative advertising (20.1)
• Commercial communications must not imitate the general layout, text, slogan/ tagline, distinctive signs, visual presentation, music, or sound effects of other advertisements, whether national or foreign, even if the campaigns have come to an end, when any of these items are protected by industrial or intellectual property rights or the advertising leads to the likelihood of confusion in the minds of consumers, or entails taking unfair advantage of the effort or reputation of others (20.2)

21. Denigration: Commercial communications must not discredit or denigrate, implicitly or explicitly, other companies, activities, products or services. Statements contained in the message that are accurate, true and relevant will not be considered as denigration. In particular, references to the personal circumstances of a businessman or his company will not be considered as 'relevant'
22. Comparisons: Comparative advertising, direct or indirect, must respect the requirements listed below:

1. The goods or services compared must have the same purpose or meet the same needs
2. The comparison will be done objectively between one or more material, relevant, verifiable and representative features of those goods and services, which may include price
3. In the case of products covered by a designation of origin or geographical indication, specific name or guaranteed traditional specialty, the comparison may be only made with other products of the same designation
4. Goods or services shall not be presented as imitations or replicas of good of services bearing a protected trade mark or trade name
5. The comparison must not contravene any rules established by Articles 14, 20 and 21 of the Code, related to acts of deception, denigration and confusion and exploitation of another's reputation

See also clause 18 above 

Other key clauses (see linked code) 

23. Proof of Advertising Claims

24. Aggressive Advertising 

25. Promotions

26. Common characteristics

27. Campaigns with a social cause

E. Protection of children and adolescents

28. Commercial communications addressed to children must be extremely careful. They must not exploit the naivety, immaturity, inexperience or natural gullibility of children or adolescents.  Commercial communications aimed at children or adolescents, or which are likely to influence them, must not contain statements or visual presentations which may harm them mentally, morally or  physically. Products that are illegal for children and / or adolescents or inappropriate or harmful to them should not be publicised in media directed to them. Commercial communications aimed at children and / or adolescents should not be included in media where editorial content is not suitable for them. Special care will be taken to ensure that advertisements do not mislead or deceive children as to the actual size, value, nature, lifespan or performance of the advertised product. If extra items (e.g. batteries) are required to use the product or to produce the results described or shown (e.g. paint) they must be explicitly pointed out. Commercial communications must not overestimate the degree of skill or the age limit of the children in order to enjoy or use the products

F.  Health protection

G. Advertising of credit institutions

1. 2. Confianza Online Ethical Code (COEC) 

2022 version in Spanish here 

Key provisions translated here 

Applicable to advertising, e-commerce, protection of minors, and personal data in the context of distance electronic communications

• The new (2022) version of this important code has been significantly amended. The key changes for our purposes are related to a) the loss of a number of clauses that covered advertising content issues that in large part replicated the Autocontrol Code of Advertising Practice and b) Title IIII, Chapter III of COEC - Personal Data Protection - now incorporates and more closely reflects GDPR provisions. E-Commerce rules are also significantly amended
• Unchanged for our purposes is the Definition of Advertising (EN) specifically. The latter can be important in the context of e.g. owned websites as it clarifies what does and doesn’t qualify as advertising in an owned environment and provides exemptions that may be pertinent
• Reference point a) in the first bullet point above, Article 23 ‘Advertising’ represents the former clauses:

The advertising in electronic distance communications media of this Code’s affiliated entities must be in accordance with the applicable law and with the AUTOCONTROL Advertising Code of Conduct as well as being being decent, honest and truthful, according to the terms in which these principles have been articulated by the International Chamber of Commerce Code of Advertising Practice

2. LEGISLATION

While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation

Applicable in this context

• Law 34/1988 of 11 November on General Advertising EN key clauses / ES (both inc. 2022 amends)
• Law 3/1991 of 10th January on Unfair Competition EN key clauses / ES (both inc. 2022 amends)
• Royal Legislative Decree 1/2007 General Consumer and User Protection Law (RLD 1/2007) ES / Art. 20 Invitation to Purchase EN
• Law 13/2022 of July 7 on General Audiovisual Communication ES / EN key clauses 

2.1. General Advertising Law (34/1988)

The following is unlawful (key extracts, unofficial translation, 2022 amends in italics):

• Advertising that violates the dignity of the person or any of the values and rights enshrined in the Constitution, particularly those referred to in Articles 14, 18 and 20 (4) of the Constitution EN / ES (Art. 3a) Note: these are rights to equality and non-discrimination, freedom of religion, right to honour, personal and family privacy and own image
• Advertising which portrays women in a degrading or discriminatory manner, either by specifically and directly using their bodies or parts thereof as mere objects unrelated to the product being promoted, or their image associated with stereotyped behaviours (see note on case here) which violate the basis of the legal system while contributing to generate the sort of violence referred to in Organic Law 1/2004 of 28 December 2004 on comprehensive protection measures against gender-based violence 
• Similarly, included in the previous provision is any form of advertising in any of its manifestations that contributes to encouraging violence against or discrimination towards minors, or promotes stereotypes of a sexist, racist, aesthetic or homophobic or transphobic nature, or because of disability, as well as that advertising which promotes prostitution
• Advertising aimed at minors encouraging them to purchase a good or service by exploiting their inexperience or credulity or where they appear persuading parents or legal guardians to buy the advertised product/ service for them. Children may not be shown in dangerous situations without good reason. Advertising may not be misleading as to the characteristics of products or their safety nor to the ability and skills necessary for the child to use it without causing harm to itself or others (Art. 3b)  ​

​

2.2. Law 3/1991 on Unfair Competition ES / EN key clauses inc. 2022 amends

Law 3/1991 distinguishes between two types of unfair conduct: 

3.2. Pricing

 Stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of this website, does not constitute advice, just what the rules say

Applicable self-regulation and legislation 

Note:  the law under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC; in amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for reduced/ promotional pricing. These came into force in member states on May 28, 2022, in Spain via Royal Decree 24/2021 amending the Retail Trade law 7/1996 ES / EN key clauses. Commission guidance for the application of the article is here

• Autocontrol’s General Code of Advertising Practice (EN) articles 14.1 (e) Misleading advertising and 22 (b) Comparative advertising
• Royal Decree 3423/2000 on the Regulation of the Indication of Prices ES / EN key clauses inc. article 3 Indication of prices and exceptions
• Royal Legislative Decree 1/2007 General Consumer and User Protection Act ES (2022). Key clause Article 20 EN 'Invitation to purchase'
• Law 3/1991 on Unfair Competition EN key clauses / ES (both inc. 2022 amends) articles 5/1/e, 7, 22
• Law 7/1996 on Retail Trade EN key clauses / ES (Art. 20 for 2022 amend re discount price announcements) 

Case law: Court of Justice of the European Union (CJEU) C‑476/14 Citroën/ZLW Judgement and AG Opinion

ECJ '30 day' judgement Aldi promotional pricing Sept 24, 2024

The case is here; Pinsent Oct 4 commentary here 

• Article 14.1 (e) AC General Code: Commercial communications must not be misleading. Misleading advertising is that which in any way deceives or is likely to deceive its recipients, and is liable to alter their economic behaviour, provided that it has an impact on one of the following elements: The price or the manner in which the price is calculated, or the existence of a specific price advantage (this clause selected for this context)
• Article 22 (b) AC General Code: Direct or indirect comparative advertising shall respect the requirements listed below: The comparison will be done objectively between one or more material, relevant, verifiable and representative features of those goods and services, which may include price

• Royal Decree 3423/2000 ES implements Product Pricing Directive 98/6; key provisions in English, as outlined below EN
• The selling price must be indicated for all products offered by traders to consumers (Art. 3.1)
• Selling Price is the final price for a unit of the product or a specific/ given quantity of the product, including the Value Added Tax and all other taxes (Art. 2a)
• The price per unit of measurement must be indicated:

• For all products that need an indication of the quantity, the unit of measurement of which must be stated 
• For products sold by units or pieces, using in such a case the price of one unit or piece as the unit price (Art. 3.2)

Features and presentation of prices (Art. 4)

• The selling price and the unit price (price per unit of measurement) must be:

• Unambiguous, easily identifiable and clearly legible, situated in the same visible area/ field of vision
• Visible to the consumer without the need for the latter to request such information (Art. 4 (1a&b))

​

• The Retail Trade Law 7/1996 EN key clauses / ES (2022) carries many provisions related to pricing; the linked EN file includes only those more closely related to commercial communications and especially requirements from the Product Price Directive amended by Directive 2019/2161 to incorporate a new article 6a on promotional price announcements;  transposition is under article 20 of the Retail Trade Law:
• 1. Whenever items with a reduced price are offered, the previous price together with the reduced price must be clearly shown on each one of them, except in the case of items offered for sale for the first time. The previous price shall be understood to be the lowest that would have been applied to identical products in the preceding thirty days. For these purposes, the price that could have been applied, in order to reduce food waste, on identical products whose expiration or preferential consumption (best before) dates were about to lapse will not be taken into consideration. 2. Under no circumstances may the use of sale promotion activities be subject to the condition of the existence of a minimum or maximum percentage reduction.

3.2.4. Case law

• Key points from C‑476/14 Citroën/ ZLW case. Where an advertisement mentions the price of a product, the selling price must be stated; this means the final price including VAT and include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (para. 37). Other price components = integral parts of the final price (para. 23)
• EU Commission also confirms, under Article 7 (4)(c) UCPD (In Spain Art. 20 RLD 1/2007), an entry-level price or starting price, i.e. indicating the price as 'from' a specific minimum amount, can only be permitted if the final price cannot ‘reasonably be calculated in advance’ due to the nature of the product (Case C-122/10 Konsumentombudsmannen/ Ving Sverige AB, Judgment of 12 May 2011, para. 64)

SECTION D

NOVEMBER 2023

AUTOCONTROL publishes video on copy advice management process (ES)

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

AUTOCONTROL has updated its service offering (ES) and, among others, has launched two new consulting services:

la Consultoría orientativa de protección de datos,

Data protection consultancy and

la Consultoría sobre campañas de publicidad o web

Consultancy on ad campaigns or the web

The latter provides formal advice on a more general basis than the analysis of specific proposals under Copy Advice®, covering application of the rules, regulation of the category or service, etc. of future advertising campaigns, including web pages or assessing those on the same basis separately. 

Additionally, after the entry into force of the Data Processing Code January 1, AUTOCONTROL has a new sistema de reclamaciones de reclamaciones de protección de datos y publicidad  (we think that’s a system for complaints about claims related to data protection and advertising)  which Confianza Online members can access for free

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

There are 3 key instruments in Autocontrol, as with most advertising SROs:

1. Code of conduct: the Autocontrol Code of Advertising Practice (EN) 
2. Out-of-court dispute settlement system: Complaints Committee or Advertising Jury (Jurado de la Publicidad) and
3. Prior control mechanisms Copy Advice® and Cookie Advice. There is no pre-clearance per se in Spain; however, some sectoral codes and co-operation agreements with Autocontrol require adhered companies to obtain copy advice for advertising in certain media. This is not always mandatory; for example, it is voluntary for Cosmetics under the STANPA Code

MANDATORY COPY ADVICE 

See above under first header

Copy Advice is compulsory under some codes for adhering companies, and is binding:

• Code of co-regulation of advertising for food and beverage products directed to children, prevention of obesity and health PAOS Code. Prior copy advice is required for all advertisements aimed at children under 12, and for food and beverage TV commercials broadcast during children’s enhanced protection viewing times (between 8–9am and 5-8pm on weekdays, and 9am–12pm on weekends and public holidays (1st, 6th Jan; Good Friday; 1st May; 12th October; 1st November; 6th, 8th, 25th Dec), during which time it is prohibited to broadcast programmes rated as +12). See Section B (4) (1) PAOS Code
• Self-Regulatory Code for advertising toys to children EN. Those companies affiliated to the Code undertake to send all TV advertisements for binding copy advice; see p. 15 of linked translation; Section 3 (1). Whilst the Code states all toy ads must be sent for advice, Autocontrol have confirmed that, since the code’s application, this has been interpreted and implemented as for TV advertising only
• Alcohol codes:

• BEER: following an agreement between Cerverceros and Autocontrol in 2009, copy advice is required for all Brewers’ TV commercials, per the Brewers Code (EN) itself; mandatory for TV, optional for other media
• WINE: under Chapter VI of the OIVE Wine Code (EN), copy advice is mandatory for TV, optional for other media
• SPIRITS: FEBE and Autocontrol contracted in April 2014 that FEBE members or those observing their Code must request Copy Advice® prior to advertising in TV, cinema, press, radio and outdoor

AUTOCONTROL AND CONFIANZA 

Re the General Code of Advertising Practice (EN) and the Confianza Online Ethical Code (ES). Autocontrol membership implies commitment only to the General Code. The Confianza Code is one of several sectoral Codes managed by Autocontrol that apply only to their members. Nevertheless, for the time being Autocontrol membership allows membership of Confianza Online at no extra charge; therefore, most Autocontrol members are also members of Confianza Online

SECTION E LINKS/ SOURCES

GDPR

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures. Both came into force May 25 2018:

https://eur-lex.europa.eu/eli/reg/2016/679/oj

European Data Protection Authority

Article 29 Working Party/ EDPB

The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.h

Five recent and significant papers in the GDPR context:

• Guidelines 03/2022 on deceptive design patterns in social media platform interfaces: how to recognise and avoid them
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
• Guidelines on consent under Regulation 2016/679 (May 2020)

• Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019

• Guidelines 8/2020 on the targeting of social media users adopted April 2021

​​Commercial practices: UCPD

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj

​Guidance: On 17 December 2021, the European Commission adopted Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.

The Omnibus Directive 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

Pricing

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN

Comparative advertising

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

Audiovisual media

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

AVMSD amendment

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. 

Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

e-Privacy

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

e-Privacy Regulation draft (10 February 2021)

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

e-Commerce

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

The Digital Services Act

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

The Digital Markets Act

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here.  Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925

Advertising

Law 34/1988 of 11th November, General Advertising; entered into force 05/12/1988. Ley 34/1988, de 11 de noviembre, General de Publicidad. This law partly transposed Directive 84/450/EEC concerning misleading advertising, subsequently repealed and codified by Directive 2006/114/EC. Relevant section: Title II Unlawful advertising and measures to prevent it happening (Arts. 3-6). The law prohibits advertising that violates fundamental constitutional rights, unfair competition including misleading and aggressive advertising, and surreptitious and subliminal advertising. It also prohibits discriminatory or disparaging portrayal of women. Law 13/2022 of July 7 on General Audiovisual Communication provided amends to article 5 of Law 34/1988 covering some aspects of alcohol advertising and Organic Law 10/2022, of September 6 added to the protective measures for vulnerable consumers under article 3.  Consolidated text:

https://www.boe.es/eli/es/l/1988/11/11/34/con

Unofficial English translation of key clauses inc. 2022 amends:

http://www.g-regs.com/downloads/SPGenAdvertisingLaw3419882022EN.pdf

Unfair competition

Law 3/1991 of 10th January on Unfair Competition. Ley 3/1991 de 10 de enero de Competencia Desleal. Chapters II Acts of Unfair Competition and III Commercial practices involving consumers and users. This law carries provisions from the Unfair Commercial Practices Directive 2005/29/EC and the Misleading and Comparative Advertising Directive 2006/114/EC. Royal Decree 24/2021 (ES), of November 2 under article 84 transposed the provisions of Directive 2019/2161 that relate to search rankings, consumer reviews and international marketing into articles 5, 26 and 27 of Law 3/1991, which distinguishes between two types of unfair conduct: ‘Acts of unfair competition’, which affect companies/ businesses as well as consumers, the latter in Articles 4, 5, 7 and 8, Chapter II and ‘Commercial practices involving consumers and users’ in Chapter III, Articles 19-31. This section regulates acts of misleadingness towards consumers, separate to the acts of misleadingness from Article 5. Aggressive practices introduced in Article 8 are expanded in Articles 28 to 31. Practices from Articles 20-31 will be considered unfair commercial practices in all cases and circumstances (Art. 19.2). Consolidated text:

https://www.boe.es/eli/es/l/1991/01/10/3/con

Unofficial English translation:of key clauses inc. 2022 amends:

http://www.g-regs.com/downloads/SPUnfairCompLaw319912022CENb.pdf