Updates:
New AC Code August 2019
New Gam Code Dec 2019, effective Jan 15 2020
Autocontrol review March 2020
New Royal Decree Oct 2020
New Influencer Code Dec 2020
New AC links May/ June 2021
Refresh August 2021
Blogs Sept and Oct 2021
New agreement Oct 2021 DGOJ/ AC
Draft decree (ES) September 2021
Links checked December 2021
Draft Bill to amend the Spanish Gambling Act
Above from Osborne Clarke Sept 2022
General AV Law 13/2022 May 2022 (EN)
Unfair Competition Law 3/1991 (EN) i.f. Oct 2022
COEC EN translation October 2022
Online commercialization of lottery games
Above DLA Piper/ Lex October 19, 2022
Gambling Comparative Guide March 2023
Above from Asensi Abogados/ Mondaq
Royal Decree 176/2023 (ES) March 14, 2023
AGCOM fines Twitter/ X 1.35 mil euros (ES)
Current framework on gambling advertising
Osborne Clarke November 28, 2024 NB
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Royal Decree 176/2023 on Safer Gambling Environments (ES) published March 15, 2023 in force September. Helpful 'legal memo' from ECIJA; EN version follows Spanish.
SELF-REGULATION
LEGISLATION
- Audiovisual advertising between 1am and 5am only (art. 18)
- No sport shirt or stadium or entertainment facility or sports competition sponsorship (art. 12)
- No promotional marketing aimed at new customers (art. 13)
The appearance in commercial communications of people or characters of relevance or public profile is prohibited (art. 15)
The rules are set out in the following content section B and channel section C, as applicable, or see the linked files above;
There’s also a helpful summary blog from Osborne Clarke here and No More Celebrities in Gambling Ads in Spain from Gala/ Lex October 2021.
Ministerial Orders
Various Ministerial Orders, collected here, regulate the specifics of different forms of gambling – roulette, blackjack etc. These decrees all carry the same article 9, which carries promotional rules such as identifiability, social responsibility, and protection of minors. Details in the following content section B or see the linked documents.
Other relevant laws
Also important is the General AV Law 13/2022 (EN key clauses) which regulates audio-visual media, both traditional TV/Radio and on-demand services and video-sharing platforms including commercial communications in those media. This law is supplemented by Royal Decree 1624/2011 (EN), which covers marcoms during the live transmission of sports events. Whilst these are general advertising rules and not exclusive to gambling advertising, its provisions are specifically referenced in the Ministerial Orders referenced above and the self-regulatory Code of Conduct of Commercial Communications of Gambling Activities (see below), in particular article 123 audiovisual commercial communications that encourage behaviours harmful to health and 124 Rights of minors.
NATIONAL AUTHORITY
and draft decree (now published)
At national level, gambling activities are regulated by the General Directorate for the Regulation of Gambling Activities ('Dirección General de Ordenación del Juego’, or DGOJ), also responsible for issuing licences to operators, which licences include authorisation for advertising and promotion. The authority reported September 2021 discussions on the draft Royal Decree that regulates the development of safer gambling environments. The draft decree (ES) was out to consultation by the Ministry until September 24. See above for the publication of this Royal Decree 176/2023 (ES) on March 15, 2023; into force September.
REGIONAL REGULATION
For the advertising of land-based/ on-site gambling operations, the 17 autonomous regions regulate gambling activities within their respective territories. The majority of those regions provide rules on the advertising of gambling activities and gambling operators. The Gambling Policy Council (Consejo de Políticas del Juego) is responsible for acting as a liaison between the state and the appropriate authorities in each of the 17 regions.
RESPONSIBILITY MESSAGING
The terms of the Gambling Code of Conduct (unofficial EN) include the requirement under Article 6.14 and Appendix II to incorporate responsibility messages and website together with the prohibition of U18s, showing these in either full screen or banner form:
The gambling authority DGOJ provides the website (referenced above in situ) which addresses responsible gambling: www.jugarBIEN.es
The November 2020 Decree 958/2020 (ES / EN key clauses) referenced above includes under article 10/3: 'Commercial communications must include a message about playing responsibly, such as “si juegas, juega con responsabilidad” (If you play, play responsibly), “jugar sin control puede tener consecuencias perjudiciales a nivel sicosocial” (Playing recklessly can be psychologically damaging) or similar.' Layout rules are shown in the following Content Section B; in brief, either 'clearly visible' throughout the commercial, or for at least two seconds at the end of it. Article 11/3 of the Royal Decree requires that 'Commercial communications must include the warning that minors may not participate in gambling activities, such as ‘No minors’, ‘+18’ or similar.' See the linked file or the following content section B for layout rules.
CHANNEL RULES
These are set out under individual channel headings that follow in section C. The obvious and very important issue is the avoidance of minors in all channels, a requirement of various sources of both legislation and self-regulation. A key influence, per above under 'other relevant laws', is the General AV Law 13/2022 (EN key clauses inc. 2022 amends) which carries the rules from the AVMS Directive 2010/13/EU and extends those into video-sharing services as a result of amends from the 2018/1808 Directive. Gambling commercial communications are referenced under article 123/7: 'Audiovisual commercial communication related to games of chance and betting may only be broadcast between 1:00 a.m. and 5:00 a.m., without prejudice to the provisions of section 8 and with respect for the principles of protection of minors, social responsibility and responsible or safe gambling under the terms set out in the sector regulations governing commercial communications for this type of gambling.'
GENERAL RULES
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.
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
French trans November 7, 2024, SW here
EU to re-open, merge CSRD, CS3D & Taxonomy
REP November 20, 2024
TEMU challenged by CPC network (FR)
EC Digital Fitness Check published Oct 3, 2024
Lewis Silkin on above here (scroll down)
Recycling claims mislead consumers:
legal analysis for EU & UK markets Client Earth Oct 2, 2024
AI
The AI Convention CSC Sept 12, 2024 here
EASA newsletter update AI legislation Aug 2024
AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
Greenwashing Regulations in the Fashion Industry
White & Case Nov 25, 2024. FR, UK, US, DE, AUS
Greenwashing in the EU, France and the UK
Addleshaw Goddard/ Lex November 11, 2024
Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024 (see below)
Stichting Milieudefensie v. Shell. Freshfields November 6, 2024
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
Navigating the increasing scrutiny of green claims
Slaughter and May November 19, 2024. EU, UK. Audio
Standards for Claims of “Carbon Neutral” and “Climate Friendly”
Formosan Brothers October 4, 2024
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
CSDDD FAQs Proskauer October 4, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The latest ICC Code was published September 18, 2024
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A) Sponsorship (B) Direct Marketing & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
Key rules are set out in the following content section B and channel section C, as applicable
Lawyer commentary
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and self-regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or channel | Key European legislation and clauses |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC
|
Electronic coms. Consent and Information |
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Shaping The Future Of Tech: Latest Updates On The Digital Markets Act
Quinn Emanuel/ Lex October 10, 2024
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic
Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*
Data Protection update - August 2024. Stephenson Harwood/ Lex
Above covers Australia, China, EU, UK, USA
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) 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 sets out new information requirements for search rankings and consumer reviews, new pricing information 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 October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
...............................................................
Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
As this is reference work rather than current, we have made it available in back-up here
Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
1. LEGISLATION
1.1. Law 13/2011
1.2. Decree 958/2020
1.3. Ministerial Orders
1.4. Royal Decree 1614/2011
1.5. EU Recommendation Online Gambling
2.1. Principle of legality
2.2. Principle of good faith
2.3. Principle of identification
2.4. Principle of truth
2.5. Principle of social responsibility
2.6. Principle of responsible gambling
(Incorporates warning/ responsibility message)
2.7. Protection of minors
2.8. Scheduling
2.9. Online
3. EGBA STANDARDS/ CODE OF CONDUCT
4. GENERAL RULES applicable to all sectors
4.1. Self-regulation
4.2. Legislation
1. LEGISLATION
1.1. Law 13/2011 of 27 May on the regulation of gambling. Article 7 Advertising, sponsorship and promotion of gambling activities. DGOJ English translation here of the full law
1.2. The Royal Decree 958/2020 (ES; EN translation of key clauses here) ‘develops’ Law 13/2011 ‘with regard to the conditions under which licensed operators included in its scope may carry out advertising, sponsorship, promotion or any other form of commercial communication of their activity.’ See above
Article 7. Principle of identification of commercial communications and the advertiser
Article 8. Principle of truthfulness
Article 9. Principle of social responsibility
Article 10. Principle of safe play
In the case of its distribution through radio/ audiovisual communication services, the playing responsibly message must appear in at least one out of every two successive commercial communications from the same operator and service provider, without prejudice to the provisions of article 21.4 in the case of competitions
Article 11. Principle of protection of minors
(includes warning messages)
In the event of its distribution via radio/ audiovisual communication services, the warning above must appear at least in one out of every two successive commercial communications from the same operator and by the same service provider. The gambling authority may establish, by resolution, the specifications regarding the shape, size, arrangement, contrast and content of the message
Article 14. Free game applications
Sponsorship
Sponsorship activities (art. 12) and promotional activities (art. 13)
are shown under the relevant headers in our following Channel Section C, as is Chapter III
‘Specific provisions depending on the advertising channel’
Article 15. Appearance of people or characters of relevance or public notoriety in commercial communications
(in force April 2021 in the case of pre-existing contracts)
1.3. Art. 9 (EN) Ministerial Orders developing types of gambling activity
There are some fifteen of these Ministerial Orders, shown here with links to Spanish and English versions; they regulate the specifics of various different forms of betting, setting out rules for e.g. payment of prizes, formalising bets, gameplay, determining and awarding prizes etc. Regarding marcoms, all carry a single identical article 9, set out below
1.4. Royal Decree 1614/2011 (EN) which develops Law 13/2011
1.5. EU Recommendation Online Gambling
Commission Recommendation (not binding in law but important to be aware of) No. 2014/478/EU of 14 July 2014. As the new Decree 958/2020 is specific and goes rather further than the Recommendation, we have simply linked it for the record. Key chapters are:
III. Information requirements
IV. Minors
VIII. Commercial Communication
IX. Sponsorship
The first transitory provision of Decree 958/2020 states: 'The content of the Code of Conduct on Commercial Communications of Gaming Activities of June 7, 2012 will be adapted to the content of this Royal Decree within a period of six months from its entry into force.’ (i.e. by May 2021). The following are the self-regulatory provisions in force. Translation is primarily Autocontrol's. See above; at the time of writing (April 2024) it is unclear how the self-regulatory code will adapt to the annulments announced by the Spanish supreme court
The Gambling Code of Conduct (EN former version; applicable Spanish code here; new clauses translated below by GRS)
Scope: applies to all advertisements, promotion, sponsorship and any other form of commercial communication disseminated in Spain, of any type of gambling activity regulated in Law 13/2011, of 27 May, on the regulation of gambling, including the promotion of companies, brands and events carried out by companies or bodies bound to the Code.
1. Principle of legality
2. Principle of good faith
3. Principle of identification
4. Principle of truthfulness
5. Principle of social responsibility
6. Principles of responsible gambling
Age and responsibility messaging
Annex II. Full screen
In accordance with the provisions of clause 6.14 of this Code of Conduct, the standardised warning that includes the responsible gambling and prohibition of gambling for those under 18 years of age logos will be the following:
Annex III. Banner
In accordance with the provisions of clause 6.14 of this Code of Conduct, the standardised warning provided for in Annex II may be substituted or complemented by the banner shown below, which should be included to clearly legible dimensions on the bottom of the image throughout the advertising
The gambling authority DGOJ provides the website (in situ above) that addresses responsible gambling: www.jugarBIEN.es
7. Protection of minors
Scheduling rules
8. Self-regulatory principles of commercial communications in audiovisual communication services
These are scheduling rules versus content rules and are therefore found in the following Channel Section C or collected here; broadcasters will anyway advise
9. Self-regulatory principles of commercial communications disseminated via electronic means in information society services
Recent adjudications (all sectors) can be found here:
https://www.autocontrol.es/resoluciones-del-jurado/
https://www.autocontrol.es/wp-content/uploads/2018/11/rest2331.pdf
These rules apply to members of EGBA. The full set of 2011 European industry standards is here, and the 2020 Code of Conduct on Responsible Advertising for Online Gambling here.
4. GENERAL RULES applicable to all sectors
4.1. Self-regulation
4.2. Legislation
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)
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.
.........................................................
Safety and health (Art. 21)
NEW ARTICLE
Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
This sector has a separate database on this single topic. Access via the drop-down on the home page
We have not set out individual clauses below, therefore.
Applicable self-regulation
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, 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;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader 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;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(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.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) 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;
(b) unit price shall mean 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 or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN)
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Decree 958/2020:
Principle 8. Self-regulatory principles of commercial communications in audiovisual communication services
See the Code (EN unofficial) for full provisions.
It is not yet (April 2024) clear how the self-regulatory code will reflect the law annulments referenced above
Royal Decree 958/2020 changes the permitted timeframe to 0100-0500 hrs. and will take precedence. The code was required to be updated by May 2021
Promotional marketing aimed at new customers is prohibited under the terms of RD 958/2020; the Code of Conduct is required to be in line with the decree by May 2021. Meanwhile, the Decree applies
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
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in italics below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN)
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Decree 958/2020
These channels fall under the definition of ‘face-to-face media’ provided in the Royal Decree’s article 3 (h): that which is carried out via billboards, canopies, posters, monitors, screens, or any others of a similar nature, both movable and immovable; that which is affixed on moving elements and means of transport, whether public or private; that which is broadcast through public address systems; as well as that which is disseminated in brochures, or in magazines, newspapers or similar media
Article 17. Commercial communications through face-to-face media
Media self-regulation
Cinema Advertising and Protection of Children (Art. 6)
(General rules, not gambling-specific, but applicable)
Autonomous communities
Press, magazines & promotional literature, e.g. leaflets, brochures, catalogues etc.
Regional
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
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
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Article B12 ICC Code Media sponsorship
The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN). See below
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Privacy issues should be reviewed with specialist advisors
We show in this section the broad picture for rules for gambling marcoms in digital channels in Spain. The influence of legislation on digital commercial communications is significant, especially relating to issues of privacy. Full information under the General tab below. More specific digital channels such as OBA, email etc. follow under separate headers
CORE RULES
GAMBLING MARCOMS RULES SPECIFIC TO ONLINE
Royal Decree 958/2020 article 23. Commercial communications in information society services
WELCOME BONUSES AND PROMOTIONS
Promotions to attract new customers are prohibited whatever the conditions of the promotion (Art. 13 Royal Decree 958/2020)
GENERAL ONLINE CHANNEL SELF-REGULATION
GENERAL ONLINE CHANNEL LEGISLATION
REGIONAL
Land-based/ offline gambling
Some of the 17 autonomous communities have rules on the online advertising of offline/ land-based gambling activities and operators, particularly in regard to the websites of gambling operators
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)
Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety,
Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
2024 amends in italics; there are some 20 articles in this section of the code
C2. Identification and transparency
Article C3 – Presentation of the offer
The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions
C2. Identity of the marketer
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN)
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
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
A new path for Privacy Sandbox on the web July 22, 2024
Third party cookie plans for Chrome. WFA view here
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
Meta must limit data for personalised ads
BBC October 4, 2024. Hunton Oct 15
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
Applicable regulation and opinion
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN)
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
The prohibitions set out in this section will be implemented from 00:00 hours of the second day after the date on which the self-exclusion registration in the General Register of Prohibitions of Access to Gambling, or the detection of a person who has developed a risky behaviour.
These prohibitions will not apply from the day following that on which these people cease to be registered in the General Register of Gambling Access Bans, cease to be excluded, or are no longer classified as players with risky behaviour
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
Direct Marketing of Goods and Services in EU
ICLG April 2024. Clear and informative and (EN)
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
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 under the General tab below, or better yet Autocontrol will provide guidance
Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN)
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Those web pages or applications whose main activity is to offer information about sporting or equestrian events may create a specific and differentiated section devoted to offering information on betting, as long as that section:
Some other articles impact on marketers' own websites; see e.g. article 13 promotional activities from the link above
From Commission Recommendation 2014/478/EU (not binding, but significant)
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
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); article 7 specific to this form of advertising set out below
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Article 7 RD 958/2020. Principle of identification of commercial communications and the advertiser
All sectors; see also General tab below
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)
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code (EN 2024)
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN)
Article 17.4 Commercial communications through face-to-face media states Commercial communications sent through postal mail are prohibited
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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
Applicable self-regulation and legislation
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
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Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN)
(a) No sponsorship is allowed of events designated for or mainly aimed at minors
(b) Promotional material of the sponsoring party is not used in merchandising designed for or mainly aimed at minors
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
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
Paris Olympics & Paralympics - Part 2: What could possibly go wrong?
Squire Patton Boggs july 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
This website was created to set out the rules for international marketing communications and as such does not claim authority on the presentation of Sales Promotion (SP) rules. When we find relevant provisions in the course of what is extensive research, we will include them in this section
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Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); channel rules extracted here (ES / EN). Article 13, spelt out below, addresses promotional activities. See below
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Article 13 of Royal Decree 958/2020 linked above. Promotional activities
1) The minimum amount of the deposit required to access the promotion
2) The amount to be played and, if applicable, the number of times it is necessary to bet a certain amount so that the player can freely access, through the gaming account, the amount of the promotion and possible winnings derived from its use
3) The maximum term to access the monetary benefit of the promotion
4) The nature of the promotion, identifying whether it is money that can be withdrawn or money in bets
It will not be necessary to include the information provided for in paragraph d) when commercial communications for promotional activities are disseminated through advertising spaces where, due to their size or capacity, it is not possible to include the aforementioned information, although in such circumstances, it must be indicated, clearly and appropriately to the means of distribution, that the promotion is subject to conditions available on the operator's website. In these cases, the information provided in paragraph d) will be displayed clearly in a direct and immediately accessible link or connection, distinct from the rest of the information related to the promotion
a) The maximum amounts of bets permitted
b) The order of previous, concurrent or sequential use of the promotion, in relation to deposits or participations from the gaming account linked to it
c) The process for the early cancellation of the promotion and its corresponding impact on the gambling account
d) The moment in which the profits derived from using the promotion can be freely deployed
e) The control of said gains to a limited amount
f) Minimum quota, if any, of bets which must be made
g) Any other rules to which the use or accounting of the bonus is subject
h) Accepted means of payment to subscribe to the promotion
Welcome bonuses no longer permitted under the terms of the Royal Decree 958/2020, article 13 (set out above)
Art. 9(2b) (EN) Ministerial Orders for regulated gambling activities Scope Applicable to Poker, Bingo, Roulette, Black Jack, Baccarat, Complementary Games, Slot Games, Fixed Odds Betting on Sports, Fixed Odds betting on horse racing, Other fixed odds betting, Pool betting on sports, pool betting on horse racing, exchange betting (on sports, horse racing, and other events), and Contests. Carried out by electronic, computerised, telematic and interactive means (i.e. online, mobile, TV)
Welcome bonuses no longer permitted under the terms of the Royal Decree 958/2020, article 13 (set out above)
See also Principle 4.3 of the Gambling Code of Conduct (EN)
Welcome bonuses no longer permitted under the terms of the Royal Decree 958/2020, article 13 (set out above)
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
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. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .
ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
A2: Transparency and terms of the offer
Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.
A3: Presentation
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
A4: Administration of promotions
Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
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 2
For the purposes of this Directive:
(a) 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;
(b) unit price shall mean 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 or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction
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
The ICAS Global SRO database
https://icas.global/srodatabase/
EASA (European Advertising Standards Alliance)
https://www.easa-alliance.org/
EASA membership
https://www.easa-alliance.org/members/
Link to Best Practice Recommendations
https://www.easa-alliance.org/publication/best-practice-recommendations/
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing
European legislation
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 came into force in May 2018.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:
https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)
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 GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
Three more recent and significant documents:
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 of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (the ‘Unfair Commercial Practices Directive’ – UCPD):
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance (2021):
https://ec.europa.eu/info/sites/default/files/c_2021_9320_1_ucpd-guidance_en.pdf
European Communication and Recommendation: Gambling
In March 2011 the European Commission launched a consultation on online gambling services. In particular, the Commission asked for views on online commercial communication, sales promotions, direct marketing and sponsorship. Following its consultation, the Commission adopted the Communication Towards a comprehensive European framework on online gambling in October 2012, which set out the commission’s action plan for the next two years. Key objectives of the action plan included ensuring protection of minors and enhancing responsible advertising.
EU Commission Recommendation (2014/478/EU) on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online was published in July 2014. This is a Recommendation (not legally binding) on responsible gambling advertising, which aims to ensure that operators advertise in a socially responsible manner and provide key information to consumers. It also requires close protection of minors:
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014H0478
On 27 November 2015, gambling regulatory authorities of EEA Member States signed a cooperation arrangement to enhance administrative cooperation. The cooperation arrangement follows other initiatives announced in the Communication, 'Towards a comprehensive European framework for online gambling'.
More EU legislation is shown under the General tab below
Law 13/2011, of 27 May, on the regulation of gambling, known as the Spanish Gambling Act. Entry into force 29/05/2011. ES:
http://www.boe.es/buscar/act.php?id=BOE-A-2011-9280&b=11&tn=1&p=20140510#a7
English translation from DGOJ:
http://www.g-regs.com/downloads/SPGamblingLaw13_2011Gambling.pdf
(Does not include up to date version of Art. 7)
GRS translation of key articles (including amendments to Art. 7):
http://www.g-regs.com/downloads/SPGamblingRegLaw13_2011b.pdf
The law establishes the regulatory framework for online gambling Definition meaning gambling activities which are carried out via electronic, computerised, telematic and interactive means, in which ‘in-person’ elements play an ancillary role – so TV, internet, telephone, text message (Art. 1 (para 2) and Art. 3(h) Law 13/2011) at state level as well as that of related advertising and promotional activities. The main aim is to harmonise the regulation of online gambling in Spain. Scope: ‘Gambling’ comprises: lotteries, betting, raffles, contests, occasional games and transnational/ cross-border games (including those organised by companies outside Spain but targeted at Spanish residents), as well as any other activity in which sums of money or economically assessable items in any form are bet / risked on future and random results, which depend to some degree on chance, and which allow these sums to be transferred between the participants, regardless of whether skill or chance and luck is the predominant feature (see Art. 2 (1) Law 13/2011). Excluded are traditional on-site/ offline gambling (bingo, betting shops, casinos) activities; each of 17 autonomous communities regulates them. Also excluded: random combinations with advertising or promotional aims (Art. 2 (2c) definition in Article 3 (i) raffles/ sweepstakes aimed exclusively at advertising or promoting a product or service). Article 7 regulates in broad terms the advertising, promotion, and sponsorship of gambling activities, establishing that any form of advertising of gambling activities can only be offered by licensed gambling operators.In practice, the advertising authorisation is included in the resolution that grants the gambling licence (Art. 22 (h) RD 1614/2011). The law also helps foster the Self-Regulatory system by empowering the DGOJ (the Gambling Authority) to sign co-regulatory agreements to encourage compliance with the obligations established in the Law, particularly regarding advertising. From these co-regulatory agreements the Self-Regulatory code of conduct for gambling advertising was drawn up (see additional provision 7: RD 1614/2011). The Act empowers the autonomous communities to continue determining the majority of gambling regulations and policies within their respective regions.
Commercial communications
Spain Supreme Court overturns gambling ad restrictions
IGB April 10, 2024. And DLA Piper here April 11
Royal Decree 958/2020, of 3rd November, on commercial communications of gambling activities (Real Decreto 958/2020, de 3 de noviembre, de comunicaciones comerciales de las actividades de juego.) Entered into force 5/11/2020. This Royal Decree introduced severe new restrictions on gambling commercial communications. All forms of communication are affected and all channels. Inter alia, television advertising is confined to 0100-0500 hrs, promotions to attract new customers are prohibited whatever the conditions of the promotion (art.13), the sponsorship of shirts or sports kits will not be permitted (art.12) and there are extensive content rules on social responsibility safe play etc. (articles 7-11 Inc.). The appearance in commercial communications of people or characters of relevance or public profile is prohibited (art. 15). Any provisions of the same or lower rank that contradict the provisions of this Royal Decree are repealed. The Gambling Code of Conduct administered by Autocontrol is required to come into line with the Royal Decree within a period of six months from the Decree’s entry into force.
https://www.boe.es/diario_boe/txt.php?id=BOE-A-2020-13495 (ES)
ES/EN key clauses:
http://www.g-regs.com/downloads/SPGamDecree9582020ENcGRStrans.pdf
http://www.g-regs.com/downloads/SPGamDecree9582020ENcGRStransANNULSapr2024B.pdf
ES/EN Scope and Definitions:
http://www.g-regs.com/downloads/SPGamDecree9582020ScopeandDefsESENR.pdf
ES/EN Channel rules:
http://www.g-regs.com/downloads/SPGamDecree9582020ChannelRulesESEN.pdf
Authority
Regulatory Authority: Directorate General for Gambling Regulation (DGOJ); see Association section for detail. English version of website:
http://www.ordenacionjuego.es/en
Ministerial orders
Individual general gambling regulations for specific gambling activities. (This makes up the list of regulated gambling activities)
Article 9 of each Ministerial Order relates to the promotion of the respective gambling activity, with the exception of Exchange Betting and Fixed Odds Sports Betting (where there is an extra provision relating to in-play betting) the provisions are the same in each Order; see translation here:
http://www.g-regs.com/downloads/SPGamblingMinsterialOrdersArt.9.pdf
Specific / singular licences permitted under general licence heading: ‘Betting’
All promotion rules under article 9 in each case
Singular licences permitted under general licence: ‘Contests’
GRS note: So although raffles and other forms of pool/ pari-mutuel betting are regulated/ permitted under Art. 3 Law 13/2011, there is no specific Ministerial Order that develops the law´s regulation about raffles or other pool betting. So, in Spain, a game operator can only manage sports and horse pool betting but no other pool betting. As there is no Order regulating other categories of pool betting nor raffles, it is illegal to carry out these games according to article 5.3 of Law 13/2011, therefore they can't be advertised. Occasional or sporadic raffles may be held under authorisation (as per Art. 12 Law 3/2011)
Other royal decrees
Royal Decree 1614/2011 of 14 November implementing Law 13/2011 of 27 May on the regulation of gaming, in regard to gaming licences, permits, and registers. Contains information on online gambling licences. Confirms that application for a general licence must include, where applicable, application for authorisation to carry out advertising, sponsorship, or promotions. For these purposes, the communication of the intention to carry out the advertising activity will be sufficient when applying for the licence or during its period of validity… (Art. 4(2g); Art. 16 (3h) &( 6e); Art. 22(h)). Temporary Provision One states: “Until the publication of the Royal Decree developing/ implementing Article 7 of Law 13/2011, of 27 May, on the regulation of gambling, the advertising, sponsorship and promotion of gambling activities will be carried out in accordance with the provisions in Article 7, The General Advertising Law 34/1988 (EN), and the regulations developing it: Act 3/1991 on Unfair Competition (EN) and Law No. 29/2009 modifying the Legal Regime Governing Unfair Competition and Advertising to Improve Consumer and User Protection.” In Spanish:
http://www.boe.es/buscar/act.php?id=BOE-A-2011-17836
English translation:
http://www.g-regs.com/downloads/SPGamblingRD1614_2011.pdf
Royal Decree 1613/2011 of 14 November, which implements Law 13/2011 of 27 May on the regulation of gambling with regard to the technical requirements of gaming activities. English translation:
http://www.g-regs.com/downloads/SPGamblingRD1613_2011.pdf
Royal Decree 176/2023 on Safer Gambling Environments was published March 15, 2023 in force September 2023. Helpful 'legal memo' from ECIJA; English version of the downloadable pdf follows Spanish. Not directly advertising-related but clearly an impact on the industry. Under the rules, operators must send a message warning at-risk individuals if potentially harmful behaviour is detected. Businesses will also not be permitted to send promotions to young people between 18 and 25 if they did not previously interact with the gambling business. Users 18-25 will be shown a message related to youth gambling's association with an increased risk of unsafe gambling behaviour later in life
https://www.boe.es/diario_boe/txt.php?id=BOE-A-2023-6735 (ES)
Applicable to all sectors, Gambling included. The below are included here because they have been referenced in the preceding text.
Further information and statutes under the General tab below
Channel legislation
General Law on Audiovisual Communication 7/2010 of 31st March. Entry into force 01/05/2010. This law implements the AVMS (Audiovisual Media Services) Directive 2010/13/EU). This law regulates audiovisual media services (TV/Radio, linear and non-linear/ on-demand – Art.2.2) and establishes rules for audiovisual commercial communications in the form of television or radio advertising spots, sponsorship, tele-shopping and product placement. This applies only to private broadcasting channels; advertising in national public channels is prohibited. The CNMC (Comisión Nacional de los Mercados y la Competencia - National Markets and Competition Commission), is the audiovisual authority in Spain). An agreement was also signed with Autocontrol to foster co-regulation on TV commercial communications (June 2015 with CNMC). 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. The law includes gambling-specific scheduling regulations under article 123/7 and rules for gambling marcoms under article 91, 2c. 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
This Decree still in force (Oct 2022) but in development following consultation in the context of amends to the General AV law above. 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. The regulation supplements the General Law 7/2010 and develops some elements of the Spanish Law on TV advertising that were not sufficiently clear in the General Law, such as the calculation of the twelve minutes of advertising per hour or the maximum number of advertising breaks per programme. The law more clearly defines concepts such as tele-promotion, self-promotion and sponsorship, product placement, marcoms during broadcasting of sports events. Commercial messages broadcast during the retransmission of sport events are permitted by the Spanish General Law on Audiovisual Communications (Art. 14.4) only when the game is paused or when the advertisements allow the event to still be followed. In this case, advertising is allowed by overprints not occupying more than one fifth of the screen (Art. 15/16 RD 1624/2011). 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
E-commerce
Law 34/2002 of 11 July, on information society services and electronic commerce; entry into force 12/10/2002. 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) via amendment 32/2003. Law 34/2002 establishes a number of information requirements (Art. 10) for any company providing ‘information society services’, defined as those provided for remuneration (even if they are free for the recipient), at a distance, electronically and at the individual request of the user. It also regulates companies sending of electronic commercial communications (Title III Art. 20 and 21). Consolidated text:
http://www.boe.es/buscar/act.php?id=BOE-A-2002-13758&tn=1&vd=&p=20140510
English translation of key clauses:
http://www.g-regs.com/downloads/SP34_2002LSSICE.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
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
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, non-binding English translation:
http://www.g-regs.com/downloads/SPUnfairCompLaw319912022CENb.pdf
General 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
English translation of key clauses inc. 2022 amends:
http://www.g-regs.com/downloads/SPGenAdvertisingLaw3419882022EN.pdf
Code of Conduct for Commercial Communications of Gambling Activities (Código de conducta sobre comunicaciones comerciales de las actividades de juego) 2012, amended 2013 and 2019. This code resulted from a co-regulation agreement signed between Autocontrol (SRO), the Directorate-General of Gambling Regulation (DGOJ), the National Commission of Markets and Competition (CNMC) and the Gambling Operators. The legal basis for establishing a Self-Regulatory code from such a co-regulation agreement is found in Articles 24.5 and 7.4 of Law 13/2011 and further developed in the seventh additional provision of Royal Decree 1614/2011 of 14 November, implementing Law 13/2011 of 27 May. The Code applies to all advertisements, promotion, sponsorship and any other form of commercial communication disseminated in Spain, of any type of gambling activity regulated in Law 13/2011 on the regulation of gambling, including the promotion of companies, brands and events carried out by companies or bodies bound to the Code. List of companies bound to the Code here includes gambling operators, ad agencies, media providers, ISPs. Autocontrol enforces the Code. Under the first transitory provision of Royal Decree 958/2020 set out above, 'the content of the Code of Conduct on Commercial Communications of Gaming Activities of June 7, 2012 will be adapted to the content of this Royal Decree within a period of six months from its entry into force.'
https://www.autocontrol.es/wp-content/uploads/2020/01/anexo-i-nueva-version-codigo-de-juego.pdf (ES)
Autocontrol general codes
Autocontrol has two main Codes of Conduct, which cover commercial communications of all products/ services in all media (Confianza Online Code is restricted to online advertising/ electronic distance communications media), applicable to all members of Autocontrol
General Code of Advertising Practice (May 2021)
Ethical rules applicable to all advertising communications activities whose aim is to promote, directly or indirectly, whatever the means employed, the procurement of goods or services, or the strengthening of brands or trademarks, as well as to any private advertisement issued on behalf of an individual or legal entity aimed at promoting certain attitudes or behaviours. Not applicable to political advertising.
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 III 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 was published October 2020 by the Association of Spanish Advertisers and Autocontrol, entering 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. The use of Influencers may not be allowed for Gambling commercial communications under the terms of article 15 of Royal Decree 958/2020, which prohibits the use of ‘people or characters of relevance or public profile’.
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)
Cinema
Code of Ethics on Advertising in Cinema Entry into force 30 June 2016. An agreement establishing this new Code of Ethics on Cinema Advertising was signed between Autocontrol and the main agencies responsible for cinema advertising – namely Movierecord, Discine and 014 - on May 30th 2016 in Madrid. According to the agreement, Autocontrol has been entrusted with the control and application of the Code via its Advertising Jury; non-binding copy advice can be sought from Autocontrol’s technical team. General rules – principle of legality, conformity with General Code of Practice etc. - are under Chapter 2. There are also some specific rules (Chapter 3) relating to cinema advertising and the protection of children (Art. 6), the advertising of alcoholic beverages (Art. 7), and to movie promotions in the form of trailers (Art. 8). Signatories to the Code should ensure that movie promotions or trailers reflect the age rating of the main film. In Spanish:
http://www.autocontrol.es/pdfs/pdfs_codigos/COD_PUBLICIDAD_CINE_30.06.2016.pdf
The Directorate General for the Regulation of Gambling (Direccion General de Ordenacion del Juego, or DGOJ) is the gambling industry regulatory body which regulates, authorises, supervises, controls and, if necessary, penalises gambling activities at state level. This includes the granting of licences to operators. It essentially ensures the proper functioning of the Spanish gambling industry, particularly gambling activities carried out online, as well as those developed by monopoly lottery operators at state level (SELAE and ONCE). The main task of the DGOJ and its true mission is to protect those who participate in gambling activities, particularly minors, and dependent and vulnerable groups, which it achieves via: its Responsible gambling strategy (launched in Nov 2012, aimed at establishing a common responsible gambling strategy, with the participation of the gambling industry) and Responsible Gambling Advisory Board (set up 2013) – which proposed the creation of the responsible gambling website (www.jugarBIEN.es); the identity verification system and general register of gambling access bans - RGIA); the advertising code (which includes, among other principles, responsible gambling and social responsibility principles); and the Responsible Gambling Forum. http://www.ordenacionjuego.es/en/juego-responsable-dgoj
http://www.ordenacionjuego.es/en
Joint Committee for the Monitoring of the Code of Conduct for Commercial Communications in relation to Gambling Activities (Comisión Mixta de Seguimiento del Código de Conducta sobre Comunicaciones Comerciales de las Actividades de Juego). Created on 18 December 2012, composed of representatives of the Government, gambling operators, audiovisual media service providers (television and radio), information society service providers and newspaper publishers, as well as an Autocontrol representative, with voice but without vote. Functions include, among others, periodic assessment of the application of the Code of Conduct and making such proposals as it deems appropriate to improve and review the Code. Agreed in 2013 on the responsible gambling message to be included in all gambling marcoms as ‘Juega con responsabilidad’.
Gambling Policy Council (Consejo de Políticas del Juego)
Responsible for acting as a liaison between the federal government and the appropriate authorities in each of the 17 designated regions. Articles 34 and 35 of the Gambling Act, Law 13/2011 determine that the Gambling Policy Council (CPJ) is the state and regional body for participation and coordination on gambling matters. The Council is composed of members of Regional Councils in charge of gambling matters in every Autonomous Region and City, as well as by an equal number of representatives of the General State Administration.
EGBA
BRUSSELS, 28 April 2020 – The European Gaming and Betting Association (EGBA) has today published the first pan-European Code of Conduct on responsible advertising for online gambling. The Code is broad in scope and introduces essential standards for advertising content, across all media platforms, and dedicated measures for social media. The Code has a particular focus on minor protection. The “Code of Conduct on Responsible Advertising for Online Gambling” intends to complement and strengthen existing legal and self-regulatory frameworks for online gambling advertising in Europe. The initiative has been developed in the context of the EU Audio Visual Media Services Directive, which emphasises the important role of self and co-regulation in protecting minors from exposure to gambling advertising. More here.
JDigital – Spanish Association of Online Gambling
Non-profit organisation whose main objective is to look after the interests of the online gambling industry in Spain. It is integrated into Adigital. Works towards a competitive, positive regulation allowing a safe and open market:
http://www.jdigital.es/
Autonomous Community Gambling legislation
Use this link to help source legislation: http://www.bledajuegos.es/cuadros/REGLAMENTO%20DE%20APUESTAS.pdf
As we have referenced in the text on several occasions, Spain’s 17 autonomous communities set out additional;/ complementary Gambling legislation, some of which addresses marketing communications. We have sourced and assembled what we can, though we do not present it as exhaustive. The paper available here includes legislation from:
Madrid
Andalucia
Aragon
Asturias
Valencia
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: