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 2022 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. 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.
CHANNEL RULES FRAMEWORK - statutory
AV
RD 444/2024 (ES) of April 30 approved by Council of Ministers
Register for AV Service Providers (Including Influencers and Vloggers) GALA Jan 8, 2024
The General Law on Audiovisual Communication 13/2022 of 7 July EN key clauses (does not include art. 94 translated here; see below for why it's important) / ES, implementing the AVMS Directive 2010/13/EU and its revisions via Directive 2018/1808, regulates audiovisual media, both traditional TV/ radio, and on-demand services (and now video-sharing services), and sets out the rules for both content and placement of audiovisual commercial communications, which include 'spot' advertising, teleshopping, product placement and sponsorship.The law is supplemented by Royal Decree 1624/2011 EN / ES on AV communications in TV advertising, which covers e.g. marcoms during the broadcasting of sports events. See above header for approval of Royal Decree 444/2024 which regulates requirements for a 'user of special relevance' - i.e. an influencer - of video sharing services, in development of article 94 of Law 13/2022. Specifically, the RD 'is prepared with the objective of specifying the requirements provided for in letters a) and c) of article 94.2'. Those concern income, audience/ followers and activity respectively; these are set by the decree (Ch 2, arts 3 & 4) at 300k euros and 1mil followers in a single platform or 2mil across all platforms and they must have published or shared 24 or more videos per annum. Influencers who meet these criteria must register with the State Register of Audiovisual Providers within two months (from May 2nd) and comply with Article 94 of the General Law on Audiovisual Communication (EN). Helpful DLA Piper May 3, 2024 commentary here
Data processing/ protection
Privacy Sandbox news and updates
Management of personal data protection measures should be reviewed with specialist advisors. Meanwhile, as will be well understood, GDPR became directly applicable in member states from May 2018; the EC page on GDPR is here. Member states deal with the regulation differently; in the case of Spain, the Law on Data Protection and Digital Rights (ES permalink) adapts the Spanish legal system to GDPR. The Data Protection Agency AEPD oversees compliance. Autocontrol have recently updated data protection measures in the form of Data Processing in Advertising Activities (EN) published October 2023 and approved by the AEPD linked earlier. Law No. 11/2022, of 28 June 2022 (ES), the General Telecommunication Law, replaced Law No. 9/2014, of 9 May 2014. I Article 66 (1)(a) provides for the right to the protection of personal data and privacy in relation to unsolicited communications.
Cookies and e-Commerce
Law 34/2002 of 11 July on Information Society Services (LSSI) EN key clauses / ES (see art. 22.2) carries the EU rules from the 'Cookie' Directive 2009/136/EC. When cookies identify individuals, then GDPR lawful processing rules may apply. The AEPD (Spanish Data Protection Agency) updated its Guide on the Use of Cookies (ES) July 2023. Autocontrol’s cookie advice service in English is available here. Law 34/2002 also regulates the e-Commerce context, implementing the Directive 2000/31/EC and article 13 on unsolicited communications of e-Privacy Directive 2002/58/EC. This imposes information requirements on ‘Information Society Service providers’ and addresses e-Marketing communications, establishing the opt-in principle. Details under channel section C, or see the linked files.
SPECIFIC CLAIM AREAS
Pricing
Pricing in ads is often a source of consumer or competitor complaint, & sometimes litigation. Best to check prices in ads, especially new ads, with legal advisors
ECJ '30 day' judgement Aldi promotional pricing Sept 24, 2024
The case is here; Pinsent Oct 4 commentary here
National law in the form of Royal Decree 3423/2000 (EN key clauses; ES), transposes the Product Price Directive (PPD) 98/6/EC, establishing that the 'selling price' means the final price for a unit of the product or a specific/ given quantity of the product, including VAT and all other taxes. The Citroën/ZLW case here is important perspective on pricing. In amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for promotional pricing, applied in Spain by Law 7/1996 on Retail Trade ES / EN key clauses. Commission guidance for the application of the article is here. If advertising constitutes an ‘invitation to purchase’, Article 20 (1) RLD 1/2007 (EN art. 20) also requires a ‘full final price’. Law 3/1991 (EN key clauses) on Unfair Competition includes ‘promotional’ pricing references, such as ‘bait and switch’ advertising - see Article 22. Finally, Autocontrol’s General Code of Advertising Practice (EN) also includes price provisions in Articles 14 and 22; see our Content Section B for details of all of the above.
Environmental claims
The future of eco-labelling in the Spanish market
Bird & Bird November 12, 2024
Legal Battle in the Spanish Energy Sector Over 'Greenwashing' Claims
GALA April 2, 2024. Iberdrola v Repsol
Greenwashing: the current position of the Spanish laws. Osborne Clarke/ Lex March 27, 2023
From a self-regulatory perspective, the Code on the Use of Environmental Claims In Commercial Communications (2009) ES / EN applies to signatory companies from the car and energy sectors. See background note here. Autocontrol’s Code of Practice states that advertising must respect the environment (Art. 12). The general provisions and Chapter D Environmental Claims from the ICC Advertising and Marketing Communications Code (EN 2018; 2024 code here) will apply. Additional guidance on the use of environmental claims is in the ICC Framework for Responsible Environmental Marketing Communications (November 2021). From a statutory perspective, the use of environmental claims may be assessed against Law 3/1991 (EN key clauses 2022) on Unfair Competition; for help in this area, see section 4.1.1 Commission Guidance on application of the UCPD (December 2021). Again, details of all of the above are in our following content section B, or see the linked documents.
The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7th October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here. DLA Piper's August 2024 Environmental Advertising Claims Guide includes Spain in its comprehensive coverage.
1. SELF-REGULATION
1.1. Autocontrol’s General Code of Advertising Practice
A. Basic principles
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
1.2. Confianza Online Ethical Code
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
3.2.1. Self-regulation
3.2.2. Legislation
1.1. Autocontrol’s General Code of Advertising Practice EN / ES
I. Scope of application
II. Ethical rules. A. Basic principles
C. Principle of truthfulness
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:
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
To be updated
Comparative advertising
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 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
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
2.1. General Advertising Law (34/1988)
The following is unlawful (key extracts, unofficial translation, 2022 amends in italics):
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:
A. Acts of unfair competition; key points from Chapter II
Misleading acts (Art. 5; unofficial translation, 2022 amend in italics)
Misleading omissions (Art. 7)
Considered unfair (Art. 7.1):
Article 9: Acts of denigration
Article 10: Acts of comparison
Summary with relevant cases here
Public comparison, including comparative advertising by means of an explicit or implicit reference to a competitor, is allowed if the following requirements are met:
Article 12: Exploitation of the reputation of others
We have extracted and placed in the file below those articles from Law 3/1991 on Unfair Competition that are most relevant to marcoms: translation is unofficial and non-binding. Clauses include those transposed in 2022 from the Directive 2019/2161 relating to search rankings and consumer reviews:
http://www.g-regs.com/downloads/SPGenUnfCompExtracts2022EN.pdf
2.3. Article 20: Royal Legislative Decree 1/2007 (RLD 1/2007) General Consumer and User Protection Act ES / EN key clauses unofficial translation
‘Invitation to purchase’
a) Name, registered name and full address of the entrepreneur responsible for the product offered and, where appropriate, the name, registered name and full address of the entrepreneur on whose behalf he acts
b) The essential characteristics of the good or service, in a manner appropriate to its nature and to the means of communication used
c) The full and final price, inclusive of taxes, providing a breakdown, where appropriate, of the amount of additions or discounts applicable to the transaction and any additional costs being passed onto the consumer or user. In other cases where, owing to the nature of the good or service, the price cannot be accurately determined in the commercial offer, the consumer and user must be informed of the basis of the calculation in order to allow them to check the price. Similarly, when the additional costs being passed on to the consumer or user cannot be calculated in advance on objective grounds, they must be informed of the existence of these additional costs, and if known, their estimated amount
d) Payment procedures, deadlines for delivery and performance of the contract and the complaint handling policy, where they depart from the requirements of professional diligence, as defined in Article 4.1 of the Unfair Competition Law
e) Where appropriate, the existence of a right of withdrawal
2.4. Broadcast law; content rules
General Law on Audiovisual Communications 13/2022 of 7 July (ES; EN key clauses), which sets out the rules for advertising spots, product placement, teleshopping and sponsorship; covers TV and Radio, some forms of VOD and, most recently, video-sharing services. Includes rules on various sectors such as alcohol, medical products, rules related to children, surreptitious and subliminal advertising. Transposes the 2010/13 Directive and its amending directive 2018/180
3. SPECIFIC CLAIM AREAS
3.1. Environmental claims
3.1.1. Self-regulation (national)
3.1.2. International self-regulation
On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). Section 4.1. for Sustainability and 4.1.1. for Environmental claims specifically
3.1.5. Comparative claims
Product comparisons involving environmental claims should be assessed under the criteria set out by the Directive on Misleading and Comparative Advertising (MACAD) Article 4 MACAD / Article10 Law 3/1991 sets out the criteria under which comparative advertising is allowed. Under these provisions, such a comparison should therefore, among other things (see Art. 4 2006/114/EC / Art. 10 Law 3/1991 on Unfair Competition):
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
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
Features and presentation of prices (Art. 4)
APPLICABLE LEGISLATION
Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024
Register for AV Service Providers. GALA Jan 8, 2024
RD 444/2024 (ES) of April 30 approved by Council of Ministers
Register for AV Service Providers (Including Influencers and Vloggers) GALA Jan 8, 2024
See above header for approval of Royal Decree 444/2024 which regulates requirements for a 'user of special relevance' - i.e. an influencer - of video sharing services, in development of article 94 of Law 13/2022. Specifically, the RD 'is prepared with the objective of specifying the requirements provided for in letters a) and c) of article 94.2'. Those concern income, audience/ followers and activity respectively; these are set by the decree (Ch 2, arts 3 & 4) at 300k euros and 1mil followers in a single platform or 2mil across all platforms and they must have published or shared 24 or more videos per annum. Influencers who meet these criteria must register with the State Register of Audiovisual Providers within two months (from May 2nd) and comply with Article 94 of the General Law on Audiovisual Communication (EN unofficial translation of article 94 and implications). Helpful DLA Piper May 3, 2024 commentary here
STANDARD RULES
PROHIBITIONS
RIGHTS OF THE MINOR
ADVERTISING DURING A SPORTING EVENT
PRODUCT PLACEMENT
Article 129 General Law 13/2022 (ES; key clauses EN here) and Article 14 RD 1624/2011
SPONSORSHIP
Article 128 General Law 13/2022 (linked above); articles 12/13 Royal Decree 1624/2011
CINEMA
Special rules
Advertising in the cinema and protection of children (Art. 6)
Advertising of alcoholic beverages (Art. 7)
Content rules in Section B will apply to Print advertising, except those rules specific to Broadcast media. The principal set of rules is from Autocontrol’s General Code of Advertising Practice (EN)
OUTDOOR
In the context of roadside static advertising:
Autonomous regional legislation
The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here
Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024
CONTEXT
This 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. Autocontrol define as 'that which is aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘
In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant articles from law are referenced. The impact of GDPR is shown where possible/ relevant under individual channel sections that follow. Privacy issues should be reviewed with specialist advisors
KEY RULES
APPLICABLE LEGISLATION
Non-exhaustive
SELF-REGULATION
INTERNATIONAL/ GUIDELINES
e-Commerce information requirements (from legislation)
COOKIES
Privacy Sandbox news and updates
AEPD 2023 Activity Report (ES) April 2024
The above Google Translated here
New guidance on analytic cookies - is consent always required? (EN)
Hogan Lovells January 16, 2024. Guidance here (ES)
AEPD updates its Cookie Guide (ES). July 11, 2023
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
This section deals with cookies in the context of advertising delivery, taking in OBA. We don’t address ‘cookie statements’ specifically, though some guidance documents, which may contain references, are linked. In the context of GDPR 2016/679; when cookies (can) identify individuals, then GDPR lawful processing rules apply. Privacy issues should be reviewed with specialist advisors
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
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
Effective 19th January 2022
‘It is not necessary to provide links to third party websites where the purposes of such cookies are clearly shown. If the editor/ website owner cannot provide a sufficient explanation on the purposes of cookies used by third parties, or if it is deemed relevant, the editor must include a link to the third party website in which there is an explanation on cookies used and their purpose. The editor/ publisher must ensure that the links open out onto pages that exist which are not in English, but Spanish or co-official language used on the website. In addition, the editor must make sure that the links are not obsolete or broken, and therefore they are not directing users to out-of-date versions of the documents
A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link on the icon to the OBA Consumer Choice Platform http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
Autocontrol has extended its remit to cover OBA and translated the EASA BPR into Spanish, a copy of which text is available on their website here. The Advertising Jury is responsible for applying the EASA BPR and/ or the IAB Framework, handling complaints regarding any alleged breaches. A tailored OBA complaint mechanism is on the ‘Reclama Online’ section of the Autocontrol website
STANDARD RULES
1. APPLICABLE LEGISLATION
2. APPLICABLE SELF-REGULATION
The ICC Advertising and Marketing Communications Code (EN); see 2.2. below
DATA PROTECTION: EDPB GUIDANCE
1.1. E-COMMERCE / INFORMATION SOCIETY SERVICE
(Art. 20 LSSI) Key clauses
Note that in setting out the rules below, we show primarily, and lead with, the LSSI versions, unless otherwise indicated
1.2. CONSENT AND OPT-OUT
Key clauses
1.3 PERSONAL DATA; B2C solely
1.4. HARASSMENT
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. The Autocontrol definition is ‘all advertising communication aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below and article 4p of the Confianza Online Code (COEC), 2022 version unofficially translated here.
Issues may arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
STANDARD RULES
APPLICABLE LEGISLATION AND SELF-REGULATION
Legislation/ guidance
Self-regulation
Title III. e-Commerce/ DP
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. The key issue, obviously, is that of advertising identification. If it’s advertising, defined in Spanish law as ‘Any form of communication made by natural, legal, public or private person in the exercise of its commercial, business, craft or professional activities that aims at direct or indirect promotion of moveable or immoveable goods, services, rights or obligations' (Art. 2 Law 34/1988), then like any other advertising, it’s subject to the rules set out in our content section B
LEGISLATION
General Advertising Law (34/1988) Article 2 Definition of advertising EN key clauses inc 2022 amends
Unfair Competition Act (3/1991) Article 26 Covert Commercial Practices EN key clauses inc 2022 amends
Law 34/2002 on ISS and Electronic Commerce (LSSICE) Article 20.1 Identification of electronic commercial communications EN key clauses / ES
GUIDANCE
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.'
The ICC’s Guidance on Native Advertising (EN): https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
SELF-REGULATION
Point 13 Autocontrol Code of Advertising Practice (EN). Point 13, critical in this context, has been amended. See translated clauses in the link and below
LEGISLATION KEY CLAUSES
Under Article 26 Covert Commercial Practices of the Unfair Competition Act (Law 3/1991) payment to include promotional communications of goods or services as information in the media without clearly specifying in the content or by means of images and sounds clearly indicating to consumers or users that this is an advertisement, shall be considered misleading and hence an unfair commercial practice.
Commercial communications sent by electronic means shall be clearly identifiable as such and the entity or person on behalf of which they are made must also be clearly identifiable (Art. 20.1 LSSICE; Law 34/2002 on Information Society Services and Electronic Commerce)
As a result, the average consumer or user must be able to easily identify advertising content and distinguish it from other content. IAB Spain Guide in S. 4.6 confirms terms used to identify native advertising – which vary according to the context: “contenido presentado por – content presented by”; “contenido destacado – featured content”; contenido patrocinado – sponsored content”; or before an advertising message placing the word “publicidad” (advertising) or “publi”. Simply referencing the name of the brand without anything else is not recommended
SELF-REGULATION KEY CLAUSES
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 (Autocontrol’s General Code of Advertising Practice: B. Authenticity, point 13)
Following feedback, we no longer cover Telemarketing
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Data processing in advertising activities (EN). From Autocontrol September 2022, approved by the data protection authority AEPD. Applicable Spanish version here
Direct marketing for the promotion and sale of goods and services:
B2B marketing activities sent by postal mail: we cannot establish any prohibition of B2B postal mail
Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
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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
Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)
Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications
Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship
The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
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 to be the programme producer or co-producer, media owner or financier
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 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
As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. In the case of Spain, however, we have included extensive provisions from the Retail Trade Act, as well as national self-regulatory codes and consumer protection legislation around pricing, for example. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal. As promotional advertising/ communications might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be reviewed by specialist advisors
1. APPLICABLE RULES
1.1. Legislation
1.2. Self-regulation in promotions
1.3. Guidance
2. PROMOTIONAL FORMS
2.1. Promotion of sales with free gifts
2.2. Information requirements
2.3. Promotion of sales with a free gift or bonus/ premium
2.4. Online advertising of promotional offers and games/ competitions
2.5. Skill-based and prize draws
2.6. Free-prize draws/ sweepstakes
2.7. Paid-entry sweepstakes, games and raffles
2.8. Competitions and contests
2.9. Other requirements
3. HORIZONTAL LEGISLATION
3.1. Misleading Advertising by omission of material information
3.2. ‘Bait’ advertising and misleading promotional practices
4. LEGAL BASES (rules of the promotion)
5. SOCIAL NETWORKS
6. SELF-REGULATION IN PROMOTIONS
6.1. Autocontrol Code of Advertising Practice
6.2. ICC Advertising and Marketing Communications Code
1.1. Legislation
1.2. Self-Regulation in promotions
1.3. Guidance
2.1. Promotion of sales with free gifts; from the Retail Trade Act (EN key clauses)
The promotion of sales with a free gift is legal and subject to rules contained in Retail Act 7/1996. Article 32 specifically regulates these types of sales. The Act relates primarily to retail-based promotional rules (i.e. discount, stock clearance and liquidation sales); sales with gifts/ premiums is the most relevant category in this context
2.2. Information requirements
2.3. Promotion of sales with a free gift or bonus/ premium; Article 32 of the Retail Act
Note: Specific regulations apply to particular types of goods. For example, it is prohibited to offer any kind of promotional gifts in the medicinal and pharmaceutical sectors (Art. 78.5 Act 29/2006 on Guarantees and Rational Use of Medicines and Healthcare Products)
2.4. Online advertising of promotional offers and games/ competitions; from LSSICE (EN)
Article 20 LSSICE: Information Requirements:
See Article 22 LSSICE for consent requirements for sending of commercial communications by email and SMS
2.5. Skill-based and prize draws
The Regulations make a distinction between skill-based contests/ competition and random combinations aka sweepstakes/ prize draws, whether paid or free entry
The Gambling Act 13/2011 EN DGOJ the Spanish Gambling Authority, version / ES regulates gambling activities carried out via electronic, computer, telematic or interactive Definition Covers television, the Internet, mobile and landline telephones or any other, or interactive communication, whether it is in real or delayed time (art. 3h) means where ‘in-person channels are rendered accessory’ (Art. 1) i.e. so this law is applicable to contests and draws carried out via/ on the Internet and social networks
2.6. Free-prize draws/ sweepstakes; helpful info from DGOJ here
2.7. Paid-entry sweepstakes, games and raffles
In order for the Gambling Act (EN) to apply, the activity, i.e. Occasional Contest/ Game or Raffle, in line with the definition on Gambling, must involve the risking of money or other objects of measurable value on future, uncertain results which to some extent depend on chance, regardless of whether the player's skills determine the outcome or not, in order to obtain a prize. (See Art. 3a and Art. 2 (1a) GA).
The procedure for obtaining authorisation and other requirements vary depending on the type of gambling activity
2.8. Competitions and contests
2.9. Other requirements
3.1. Misleading advertising by omission of material information
Omission of key information can be considered misleading advertising and hence an unfair act of competition under Article 7, Law 3/1991 (EN key clauses inc. 2022 amends). As promotional communications are particularly sensitive in this respect, we are showing some ‘horizontal’ legislation as well as promotional-specific clauses below
3.2. ‘Bait’ advertising and misleading promotional practices, under article 22 Law 3/1991 (EN key clauses) on Unfair Competition
The following shall be considered misleading and hence unfair:
It is recommended that the organiser of a sales promotion in the form of a contest or draw always include legal bases which are accessible and available to users at all times, e.g. published on website. And on the registration form of promotion it is advisable to include the clause: The application to participate in this contest/ draw implies full acceptance of the legal bases that are published at the following web address: http://www.paginaweb.com/baseslegales/
Although not required by law, it is also advisable to place these bases with a notary; this allows for greater transparency and avoids any doubt over rigging the draw. The bases are here (EN)
When organising a draw/ contest on a social network it is important to consult its own rules, which might otherwise result in the blocking of accounts/ profiles. For example, Facebook and Twitter have specific conditions:
6.1. Autocontrol Code of Advertising Practice
6.2. The ICC Advertising and Marketing Communications Code (EN), which underpins much of self-regulation worldwide, carries a full chapter (A) on Sales Promotions
NOVEMBER 2023
AUTOCONTROL publishes video on copy advice management process (ES)
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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
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There are 3 key instruments in Autocontrol, as with most advertising SROs:
MANDATORY COPY ADVICE
See above under first header
Copy Advice is compulsory under some codes for adhering companies, and is binding:
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
ADVICE SERVICES
(also see above under November 2023)
Autocontrol provides four types of advice service:
Express Copy Advice: A Copy Advice Express Service is also available, delivered in one working day. The price for members is €566, and €1,131 for non-members or advertisers who are non-members. Copy Advice® Express requested before 13:00 (1pm) will be delivered within one working day following the day on which the required documentation and information was provided (working hours: Mon-Thurs 9am – 6pm; Fri 9am – 3pm; June 15 - Sept 15 8am – 3pm; holidays not included)
The Cookie Advice Service is in 3 stages:
This service is normally provided within ten days. Although the Cookie advice service is voluntary, the Guide on the use of Cookies recommends regular verification. Cost for members €848 and non-members €1,697
Autocontrol services:
https://www.autocontrol.es/servicios/
CLEARANCE
Autocontrol 10 – 14 days TV/VOD/Online/Sponsorship (incurs fees)
For help, contact the Traffic Bureau administration@trafficbureau.net
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:
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:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
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:
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
Consumer protection/ distance selling
Royal Legislative Decree 1/2007, of 16 November approving the revised text of the General Law on the Protection of Consumers and Users and other supplementary laws. The Consumer Protection Act; entry into force 01/12/2007. This act applies to the relationships and contracts between consumers and businessmen or companies. Articles 92–100 provide a special regime applicable to distance sales contracts; article 20 covers information requirements for an ‘invitation to purchase’; Article 96 covers distance commercial communications. These provisions are additional to those in Law 34/2002 of 11 July (E-commerce act); in case of contradiction, the E-Commerce act will take precedence (see Art. 94). Law 4/2022, of February 25, on the protection of consumers and users in situations of social and economic vulnerability amends article 20 of RLD 1/2007, adding further protection to vulnerable users under Sections 2 and 3. Royal Decree 24/2021, of November 2 article 82.2 amends article 20 to incorporate the provisions from Directive 2019/2161 re search rankings. Consolidated text:
https://www.boe.es/eli/es/rdlg/2007/11/16/1/con
Unofficial English translation, article 20 only:
http://www.g-regs.com/downloads/SPRLD12007GenProtection2022EN.pdf
Other relevant articles in English here:
http://www.g-regs.com/downloads/SPDistSellingRLD1_2007Art.96.pdf
2014 Ministry translation of full law EN
Pricing
National law in the form of Royal Decree 3423/2000 of 15 December, transposing the Product Price Directive 98/6/EC, establishes in Article 3 that when a price is stated it should be the ‘final’ price, including VAT and all other taxes:
https://www.boe.es/eli/es/rd/2000/12/15/3423/con (ES)
http://www.g-regs.com/downloads/SP_PriceIndication_RD3423-2000_EN.pdf (EN)
TV, Radio, VOD
General Law on Audiovisual Communication 7/2010 of 31st March. Entry into force 01/05/2010. This law implements the AVMS Directive 2010/13/EU and so regulates audiovisual media services TV/ Radio, linear and non-linear/ on-demand (Art.2.2), and establishing rules for sponsorship, tele-shopping and product placements. This applies only to private broadcasting channels; national public channels do not carry advertising. Consolidated text:
http://boe.es/buscar/act.php?id=BOE-A-2010-5292
English translation of key clauses:
http://www.g-regs.com/downloads/SPGenAVLawTSedit.pdf
General Law on Audiovisual Communication 13/2022 of 7 July. Repeals the former general AV law above and transposes the amends to the AVMS Directive 2010/13/EU brought about by Directive 2018/1808 which, for the purposes of this database, largely concern the extension of scope into video-sharing platforms. Consolidated text:
https://www.boe.es/eli/es/l/2022/07/07/13
Unofficial non-binding English translation of key clauses inc. 2022 amends:
https://www.g-regs.com/downloads/SPGenAVLaw2022ContentrulesEN.pdf
Royal Decree 1624/2011 of 14th November approving the Regulation developing the Spanish General Law 7/2010 of 31 March on Audiovisual Communications regarding television advertising, in force 07/01/2012. The regulation supplements the General Law 7/2010 and develops some elements that were deemed not sufficiently clear in the General Law, such as the calculation of advertising minutage and the maximum number of breaks. The law more clearly defines sponsorship, product placement, and marcoms during broadcasting of sports events. Consolidated text:
https://www.boe.es/eli/es/rd/2011/11/14/1624/con
English translation of key clauses:
http://www.g-regs.com/downloads/SPRD1624-2011tsedit.pdf
Direct mail
Royal Decree 1829/1999, of December 3, which approves the Regulation for the provision of postal services, in accordance with the provisions of Law 24/1998, of July 13, of the Postal Service Universal and Liberalization of Postal Services. Entry into force 01/01/2000. See article 13 (D), which requires identification of promotional mail via the letters ‘PD’:
https://www.boe.es/buscar/act.php?id=BOE-A-1999-24919
e-Commerce
Law 34/2002 of 11 July, on information society services and electronic commerce; entry into force 12/10/2002. Ley de servicios de la sociedad de la información y de comercio electrónico; abbrev. LSSI or LSSICE). This law implemented the E-Commerce Directive 2000/31/EC and also incorporated some of the provisions of the E-Privacy Directive 2002/58/EC (Article 13). Law 34/2002 establishes a number of information requirements (Art. 10) for any company providing ‘Information Society Services’, defined as those normally provided for remuneration (included are unpaid services, as far as it represents an economic activity for the service provider), at a distance, electronically and at the individual request of the user. It also regulates companies sending of electronic commercial communications in Title III, Articles 20 and 21.
https://www.boe.es/eli/es/l/2002/07/11/34/con (ES)
http://www.g-regs.com/downloads/SP34_2002LSSICE.pdf (EN)
Data protection
The General Data Protection Regulation GDPR (see opening entry in this section), directly applicable in member states and applying to the processing of personal data, was introduced in May 2018. Nationally, the 3/2018 Law on Data Protection and Digital Rights (Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales), whose purpose inter alia is to 'adapt Spanish law to the model established by the GDPR' (from the AEPD), deals with significant matters excluded by European law/ GDPR e.g. '"data processing related to common foreign and security policy, and to the prevention, investigation, detection or prosecution of criminal offences". See Barcelona University blog. Article 7 states the ‘qualifying’ age of a minor to provide consent to processing of personal data to be over 14; parents or guardians must authorise consent of under 14s. The 3/2018 law on Data Protection is here:
https://www.boe.es/eli/es/lo/2018/12/05/3/con (ES; permalink)
General Telecommunications Law (Ley 11/2022, de 28 de junio, General de Telecomunicaciones.) This legislation recasts and updates, in accordance with the Digital Single Market Strategy of 2015, the package of Community Directives of 2002: Directive 2002/19/EC the Access Directive, Directive 2002/20/EC the Authorization Directive, Directive 2002/21/EC the Framework Directive and Directive 2002/22/EC, the Universal Service Directive. For our purposes, it maintains the applicatiion of Directive 2002/58/EC, the e-Privacy Directive, providing the rules related to consent requirements under article 66 (1). July 2022 Data Guidance article on the General Telecommunications Law in English here.
https://www.boe.es/eli/es/l/2022/06/28/11/con (ES; permalink)
Regulatory authority
The Data Protection Authority is Agencia Española de Protección de Datos (AEPD)
https://www.aepd.es/es/la-agencia/bienvenida-la-agencia
Guide on the Use of Cookies (ES) July 2023
https://www.aepd.es/es/documento/guia-cookies.pdf (ES)
Sales promotions
Law 7/1996 of 15 January on Retail Trade; entry into force 06/02/1996. (Ley 7/1996, de 15 de enero, de ordenación del comercio minorista). The Law includes a section on Pricing (Chapter III; Title I) and a title on sales promotion activities (Title II, relevant provisions Articles, 18,19, and 32, promotion of sales with accompanying gift). Royal Decree 24/2021 of November 2 amended article 20, in force May 28,2022, of the Retail Trade Law to incorporate promotional pricing rules from Directive 2019/2161, which amended the Product Price Directive 98/6/EC. Consolidated text:
https://www.boe.es/eli/es/l/1996/01/15/7/con
Unofficial, non-binding English translation inc. 2022 amends:
http://www.g-regs.com/downloads/SPRetailTradeLaw2022amendsEN.pdf
The Gambling Act 13/2011 regulates gambling activities carried out via electronic, computer, telematic or ‘interactive’, which covers television, the Internet, mobile and landline telephones or any other, or interactive communication, whether it is in real or delayed time (art. 3h) means where ‘in-person channels are rendered accessory’ (Art. 1), so this law is applicable to contests and draws carried out via/ on the Internet and social networks:
https://www.boe.es/buscar/act.php?id=BOE-A-2011-9280 (ES)
http://www.g-regs.com/downloads/SPGamblingLaw13_2011Gambling.pdf (EN)
The Spanish advertising Self-Regulatory Organisation (SRO) is Autocontrol (AC) Asociación para la Autorregulación de la Comunicación Comercial. AC collaborates with other associations and organisations in the development of Sectoral Advertising Codes, signing various agreements in which AC enforces and monitors compliance with the code. Some sectoral codes require adhering companies to obtain copy advice.
Autocontrol General Code of Advertising Practice 2021. Autocontrol has one main Code of Conduct, which covers commercial communications of all products/ services, except political advertising, in all media and applicable to all members of Autocontrol, and covers all advertising whose aim is to promote, directly or indirectly, whatever the means, format, or media used, the procurement of goods or services, or the strengthening of brands or trademarks.
https://www.autocontrol.es/wp-content/uploads/2021/03/code-of-advertising-practice-autocontrol.pdf (EN)
Confianza Online Ethical Code, February 2022. Confianza Online is the non-profit association created in 2003 by Autocontrol and Adigital (the Spanish Association of Digital Economy) with the aim of increasing trust of users online; entered into force January 2003 and covers important self-regulatory ground under Title III in e-Commerce, Data Protection and Protection of Minors. The most recent February 2022 version updates Title IV in accordance with the GDPR. Ethical Code 2022 ES:
https://www.autocontrol.es/wp-content/uploads/2022/03/codigo-de-conducta-de-confianza-online.pdf
GRS non-binding unofficial translation of the key articles:
http://www.g-regs.com/downloads/SPCOEC2022GRSEN.pdf
Influencers
The Code of Conduct on the Use of Influencers in Advertising has been published by the Association of Spanish Advertisers and Autocontrol. The code enters into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. The code defines when Influencer advertising qualifies as such and sets out identification requirements:
https://www.autocontrol.es/wp-content/uploads/2020/10/codigo-de-conducta-publicidad-influencers.pdf (ES)
http://www.g-regs.com/downloads/SPGenInfluencerCode2020ENonly.pdf (EN)
Data processing
The Spanish Data Protection Authority (AEPD, Spanish DPA) has approved the Code of Conduct for Data Processing in Advertising Activities. This is the third code of conduct on data protection approved by the Spanish DPA under the umbrella of the General Data Protection Regulation (GDPR). The main objective of this code is to establish an out-of-court system to process complaints about data protection and advertising. The new procedure, approved by the AEPD, is operational from October 2023:
Cinema
Code of Ethics on Advertising in Cinema. (Código ético de publicidad en cine de las principales agencias de exclusivas de publicidad cinematográfica) Entry into force 30 June 2016. An agreement establishing this Code of Ethics was signed between Autocontrol and the main agencies responsible for cinema advertising – Movierecord, Discine and 014 - on May 30th 2016 in Madrid. The new text is an update of the previous code from 2001, taking into account changes in advertising practice and legislation. The code establishes some general and specific rules in chapter 3 on the protection of children (Art. 6), alcoholic beverages (Art. 7), and movie promotions in the form of trailers (Art. 8). In Spanish:
https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-etico-de-publicidad-en-cine.pdf
Environmental advertising
Self-Regulatory Code on the Use of Environmental Claims in Commercial Communications (2009). The Ministry of Agriculture and Fisheries, Food and Environment MAPAMA, Autocontrol and 19 companies from the Energy and Automotive sectors signed an agreement on the use of environmental claims in advertising. The code only applies to the signatory industries and to the adhering companies from the Energy and Automotive sectors:
Spanish marketing association
Ethical code:
http://www.asociacionmkt.es/actividad/codigo-etico-de-la-profesion/
IAB Spain/ Europe
IAB Spain:
https://iabspain.es/quienes-somos-iab-spain#iab-spain-misin
Legal guides:
https://iabspain.es/legal/#guas-legales
How to Comply with EU Rules Applicable to Online Native Advertising:
https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/
IAB Transparency and Consent Framework:
https://iabeurope.eu/transparency-consent-framework/
ICC
ICC Advertising and Marketing Communications Code 2018:
ICC Advertising and Marketing Communications Code 2024:
iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)
Chapter A . Sales Promotion
Chapter B. Sponsorship
Chapter C. Direct Marketing and Digital Marketing Communications
Chapter D . Environmental Claims in Marketing Communications
Chapter E. Children and Teens (2024 code)
Additional ICC Guidance and Frameworks
(non-exhaustive)
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
https://iccwbo.org/news-publications/policies-reports/icc-resource-guide-for-self-regulation-of-online-behavioural-advertising/
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
https://iccwbo.org/news-publications/policies-reports/mobile-supplement-icc-resource-guide-self-regulation-interest-based-advertising/
ICC Guide for Responsible Mobile Marketing Communications
https://iccwbo.org/news-publications/policies-reports/icc-guide-responsible-mobile-marketing-communications/
The ICC’s Guidance on Native Advertising
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/
WFA
World Federation of Advertisers
From their website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':
This is their ‘GDPR Guide for Marketers’:
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as Autocontrol) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
http://www.easa-alliance.org/members
EASA’s Best Practice recommendations
Digital Marketing Communications (2023)
Online Behavioural Advertising (2021)
Influencer Marketing (2023)
ESA
The European Sponsorship Association was formed in October 2003. ESA’s central aim is to encourage and promote good practice within the sponsorship industry. ESA can be found here:
The ESA Code of Conduct is here:
https://sponsorship.org/membership/code-of-conduct/
ESA require that Members will abide by the ICC Advertising and Marketing Communications Code, which incorporates Sponsorship under Chapter B, and ‘all applicable legal and self-regulatory requirements in the territories in which they operate.’
FEDMA
Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:
http://www.fedma.org/index.php?id=30
AEA
The Spanish Advertisers Association - Asociación Española de Anunciantes (AEA). Founded in 1965, AEA represents advertising companies, defending their interests in anything related to marketing communications in Spain. The AEA currently consists of 160 members whose advertising spend accounts for 70% of TV advertising and represents 50% of the remaining media spend. It is a member of the World Federation of Advertisers (WFA). One of the activities of the association is to develop professional documents, codes of conduct and procedural arrangements, including a Code of Conduct here
AEPE
The Spanish Association of Outdoor Advertising - Asociación Española de Publicidad Exterior (AEPE)
Opt-out register
Robinson lists. The Robinson List service enables consumers to register their desire not to receive advertising. Individuals can request that their respective data is deleted from lists of specific companies that send advertising by postal mail, email, or telemarketing. It is managed by the Spanish Association of Digital Economy (Adigital) and was created under the provisions of the Data Protection legislation:
CNMC
National Markets and Competition Commission (CNMC - Comisión Nacional de los Mercados y la Competencia) created by Law 3/2013 is the independent authority in charge of both competition and regulatory matters in Spain under Article 1 Law 3/2013: "The CNMC aims to guarantee, conserve, and promote the correct operation, transparency and the existence of effective competition in all markets and productive sectors, to the benefit of consumers and users". It will thus have hybrid functions: enforcing competition rules (provisions of Law 15/2007 of 3rd July on Competition) as well as regulating economic sectors – including Telecommunications, in the form of Gen. Telecoms Law 9/2014; see Article 70(2) for functions, and audiovisual media in the form of the AVMS Law 7/2010 of 31 March; see Art. 9 Law 3/2013. The new authority became fully operational in October 2013. The authority signed an agreement in June 2015 with Autocontrol to promote co-regulation on TV commercial communications. See AC Brochure here (page 9).