SECTION C - TV INC VOD & RADIO

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

• Royal Decree 958/2020 linked above. The decree introduces significant new restrictions, including the confining of some gambling AV communications to a time frame of 0100-0500 hrs. See above
• Art. 9 (1c) and Art. 9 (2b) on Promotion from Ministerial Orders (EN) regulating these gambling activities Scope 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; applicable to those gambling activities carried out through electronic, computer, telematic or interactive means meaning the Internet, TV, telephone (landline/mobile), other interactive means where in-person participation is ancillary
• Art. 9 (5) Ministerial Order on Fixed Odds Sports Betting MO EHA 3080/2011 (ES) and Ministerial Order on Exchange Betting MO HAP/1369/2014 (ES)
• Code of Conduct for Commercial Communication of Gambling Activities Principle 8: self-regulatory principles of commercial communications in audiovisual communication services. English translation of Principle 8 here. Note that Principle 7 prohibits any targeting of under 18s
• The General AV Law 13/2022 (EN key clauses inc. 2022 amends) carries gambling-specific rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context

• The content rules set out in our earlier section B apply in this channel; principal sector rules are from the Royal Decree 958/2020 linked above and The Gambling Code of Conduct (EN unofficial)
• The gambling sector must also observe the ‘general’ rules that apply to all sectors. These are set out in full under the General tab below; the core set of rules is Autocontrol’s Code of Advertising Practice (EN)
• The general channel (i.e. placement) rules also apply. These are shown under the General tab below and include e.g. rules for product placement and for programme sponsorship, albeit gambling placement rules are more severe 

Decree 958/2020:

1. Gambling operators’ commercial communications in audiovisual communication services may only be issued between 01:00 and 5:00, without prejudice to the special rules established in articles 19 to 22
2. The time restrictions that are set in this rule and in articles 20 to 22 will only be applicable to commercial communications from gambling operators in on-demand audiovisual communication services in accordance with the provisions of audiovisual legislation, when these communications are distinguishable and separable from the programming carried out in those services. Also, The rules set forth in article 19 shall apply for the dissemination of commercial communications during live events if they are broadcast via on-demand services

1. Gambling operators’ commercial communications in audiovisual communication services during live broadcasts of sporting, horse riding or other events of a competitive nature, may only be broadcast between 01:00 and 5:00, without prejudice to the special provisions established in articles 21 and 22
2. The provisions of section 1 are applicable to commercial communications of any kind, distributed or physically located, which are contained within the audiovisual broadcast

• Commercial communications from gambling operators in audiovisual communication services relating to mutual bets, instant lotteries and the game of bingo may not be issued within the reinforced protection time slots established in article 7.2 of Law 7/2010, of March 31, nor neither in the advertising breaks immediately before or after programmes targeted specifically or mainly to children
• These time slots will only be applicable when the operator does not hold singular licenses associated with the types of games to which the audiovisual broadcasting rules set out in article 18 apply

1. Gambling operators’ commercial communications in audiovisual communication services related to competitions may not be broadcast in the advertising breaks immediately before or after programs specifically or mainly aimed at children
2. When dissemination of competitions is included in a programme whose age rating is “not recommended for minors under eighteen years of age” it can only be broadcast between 10:00 pm and 6:00 am the next day, as long as audiovisual legislation allows it
3.  If the competition is implemented through audiovisual content, via any channel, the Information on the price of participation must be provided in the invitation to participate and, when the medium that sets out the competition allows it, during  the whole time of the promotion or the publicity of the competition. The information should be presented superimposed in static form and in a style, arrangement and contrast of typeface that allow its perfect visual presentation or perception. The size of the characters will not be smaller than that used to inform of the means of participation or, where appropriate, the payment thereof
4. The obligation established in article 10.3. (responsibility messages) will not apply to the commercial communications of competitions disseminated through radio audiovisual communication services

• In audiovisual communication services, commercial communications related to games of a delayed result lottery, including those of an occasional nature, as well as those related to raffles, may not be broadcast in the advertising blocks immediately before or after programmes targeted specifically or mainly to children

• Article 9 (1c) on Promotion from Ministerial Orders (EN) in Article 7 of Law 13/2011, the advertising, sponsorship or promotion of gambling activities by gambling operators, as well as the advertising or the promotion of the gambling operators, should be carried out according to the following criteria: c) In the case of audio-visual media broadcasts, the relevant provisions applicable to commercial communications in General Law 7/2010 on Audiovisual Communication (EN) should be respected and in particular the provisions of Article 7 on the rights of the minor. Note: the referenced law is repealed effective May 2022 by the General AV Law 13/2022 ES / EN key clauses 
• Article 9.2 (b): The gambling operator can carry out promotional activities for offering games/ gambling activities that it markets and can offer bonuses/ discounts for player registration or participation provided that such practices do not contravene the provisions of General Law on Audiovisual Communication 7/2010 (see above note). Royal Decree 958/2020 prohibits promotional marketing aimed at new customers and will take precedence 
• Article 9 (5): Operators of live/ in-play fixed odds betting and exchange betting (covering sports, horse racing and other events) can advertise bets in the medium which is broadcasting the event upon which the bets are based, done simultaneously (i.e. during the live transmission of the event) and without the need for a break. (GRS note: this provision will apply predominantly to audiovisual media; the corresponding provision in 8.4 of the Self-Regulatory code below additionally covers pool betting on sports/ horse racing, and fixed odds betting on horse racing, although the Ministerial Orders of the same do not reference live/ in-play advertising in Art. 9). See rules re live events from Royal Decree 958/2020 above

SECTION C: TV & RADIO/ AV

APPLICABLE LEGISLATION

Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024

Register for AV Service Providers. GALA Jan 8, 2024

• General Law on Audiovisual Communications 13/2022 of 7 July (ES; abbrev. GL. EN key clauses here), 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. Implements the AVMS Directive 2010/13/EU and its revisions via Directive 2018/1808,
• Royal Decree 1624/2011 (EN key clauses; ES) complements the General Law 13/2022 above and develops some of its elements in relation to tele-promotion, self-promotion, product placement, sponsorship and marcoms during the broadcasting of sporting events (referred to as the Advertising Regulation in CNMC Documents below)

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 

• As well as the channel-specific rules that follow, the commercial communication content rules set out in our preceding content section B generally apply in these channels. The principal set of content rules is from the Autocontrol Code of Advertising Practice (EN)

PROHIBITIONS

• Surreptitious commercial communication and commercial communication using subliminal techniques are prohibited (Art.122/ 3&4). Product placement must be identifiable to the viewer, otherwise it will be considered to be surreptitious; requirements in CNMC Criteria (ES)
• Commercial communication that encourages behaviour harmful to health is prohibited; article 123 of the LG above covers cigarettes and other tobacco products, medicines and health products, some alcoholic beverages, games of chance
• Article 124 covers protection of minors in the context of e.g. direct incitement to purchase, dangerous situations, discrimination beteween men and women, the cult of the body and other situations

SECTION C TV/AV AND RADIO

EASA Jan 2024 update on the AVMSD

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

Article B12: Media sponsorship

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

​

SECTION C: CINEMA, PRINT, OUTDOOR

The 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

• There are no gambling advertising rules specific or exclusive to these channels on a national level; content rules set out in section B above apply. A warning/ responsibility message is required in gambling marcoms. See content section B
• Principal content rules are from the Royal Decree 958/2020 linked above and the Gambling Code of Conduct (EN) and, for general rules applicable to all sectors gambling included, Autocontrol’s Code of Advertising Practice (EN) 

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

1. Carrying out face-to-face commercial communications of the gambling activities developed under the qualifying titles regulated in Title III of Law 13/2011 of May 27 will require adjusting, in addition to the state regulations on commercial communications, to the regulation on gambling advertising through those same media applicable to the entities authorised by the Autonomous Communities to offer these kinds of activities
2. In the case of operators of the legal reserve set out under the requirements of the first additional provision of the Law 13/2011 of May 27th, the implementation of face-to-face commercial communications of gambling activities carried out by said operators will resort exclusively to the state regulations on commercial communications
3. In any event, face-to-face commercial communications that are carried out in application of a specific sports sponsorship within sports facilities, or those that are disseminated in magazines, newspapers or similar media at a state level and whose main activity is the offer of products or information about the gambling  activities defined by Law 13/2011 of May 27, are exempted from the provision under article 1 (What that means is that  communications within sports facilities or published in magazines, newspapers or similar media that are part of a wider national sponsorship arrangement are not required also to observe the regional advertising regulations on advertising, only the national rules)
4. Commercial communications sent through postal mail are prohibited

Media self-regulation

• Code of Ethics for Cinema Advertising (ES) following an agreement signed between agencies for cinema advertising and Autocontrol in May 2016

Cinema Advertising and Protection of Children (Art. 6)

(General rules, not gambling-specific, but applicable)

• Cinema advertising during films aimed at minors (under 18’s) must comply with the values and principles of child and youth protection. In particular, advertising must not contain any statements or visual presentations that could have the effect of harming minors mentally, morally or physically. The following principles must be respected: advertising must not -

• Directly incite minors to buy a product or service, exploiting their inexperience and credulity, nor persuade parents or guardians, or parents or guardian of third parties, to purchase the product or service advertised
• Exploit the special trust minors place in parents, teachers or other persons
• Present, without justified reasons, children in dangerous situations, or that incite violent, unjust, divisive, anti-education attitudes
• Incite violence, nor imply advantages of violent attitudes
• Show situations of clear sexual content (Art. 6.1)

• Cinema advertising shown during children’s films must especially respect the principles laid down in the previous paragraph. A children’s film will be understood to mean a film aimed principally at those under 7 years old (Art. 6.2)

Autonomous communities

• Regional level (offline/ land-based gambling): Some of the Autonomous Communities have rules specific to gambling advertising in cinema channel. The general rule is that gambling advertising can be shown provided the featured film is rated 18+
• For example, in Valencia, cinema ads can show images of the façade and outside facilities of the gambling venues, as well as the inside of gambling halls provided they are completely free of people who are actively betting; people are permitted to be shown provided they are extras/ bystanders and the recording takes place outside of opening hours. Cinema ads can be screened outside the watershed (10pm-6am) provided the film alongside which the ads appear is rated 18+. (Art. 8 - Decree 190/2014 of 14 Nov, of the Counsel, approving the rules regulating the advertising of Gambling in the Community of Valencia)

Press, magazines & promotional literature, e.g. leaflets, brochures, catalogues etc.

• Various regulatory sources prohibit for Gambling advertising the depiction and targeting of minors, e.g. the Gambling Code of Conduct (EN unofficial) establishes in Article 7: It is forbidden to address commercial communications to children under the age of 18
• The gambling content rules set out in our earlier section B, together with the advertising rules for all sectors, will apply

• Various regulatory sources prohibit for gambling advertising the depiction and targeting of minors
• A specific reference to outdoor is from the EU Recommendation 2014/478/EU:

1. Member States should encourage that commercial communications are not broadcast, displayed or facilitated:

1. In media, or around programmes, where minors are expected to be the main audience
2. On websites with minors as the audience profile
3. In close proximity of places where minors normally spend time and are expected to be the main audience including at least schools (emphasis ours)

Regional

• In terms of rules governing outdoor advertising away from state-managed motorways, local/ regional rules from 17 Autonomous Communities will apply. A number of the Autonomous Regions have rules specific to outdoor advertising of land-based gambling activities and operators. In general, static advertising is permitted subject to prior notification approval of regional DG for gambling. The content of the advert is usually restricted to informational content such as the name of the premises, its address, opening hours and additional services
• Autonomous legislation also includes restrictions on advertising within a certain distance of schools

SECTION C: CINEMA, PRINT, OUTDOOR

CINEMA

• Code of Ethics for Cinema Advertising (2016). The Code is enforced by Autocontrol jury; copy advice can be obtained from the Technical team. ES version here
• General rules Articles 3-5. Special rules in Chapter III especially Articles 6 and 7 on protection of children. Key clauses shown below (GRS translation)
• The Content rules set out in Section B apply to advertising in cinemas, except for those rules that identify broadcast channels. The principal set of rules is from Autocontrol’s Code of Advertising Practice (EN)
• SAWA is the Screen Advertising World Association; member in Spain 014 Digital Screen

Special rules

Advertising in the cinema and protection of children (Art. 6)

• Cinema advertising during films aimed at minors (under 18’s) must comply with the values and principles of child and youth protection. In particular, advertising must not contain any statements or visual presentations that could have the effect of harming minors mentally, morally or physically. The following principles must be respected. Advertising must not:
   
  • Directly incite minors to buy a product or service, exploiting their inexperience and credulity, nor persuade parents or guardians, or parents or guardian of third parties, to purchase the product or service advertised
  • Exploit the special trust minors place in parents, teachers or other persons
  • Present, without justified reasons, children in dangerous situations, or that incite violent, unjust, divisive, anti-education attitudes
  • Incite violence, nor imply advantages of violent attitudes
  • Show situations of clear sexual content (Art. 6.1)
     
• Cinema advertising shown during children’s films must especially respect the principles laid down in the previous paragraph. A children’s film will be understood to mean a film aimed principally at those under 7 years old (Art. 6.2)

Advertising of alcoholic beverages (Art. 7)

• In addition to what is envisaged in the applicable regulations, advertising of alcoholic beverages in cinemas must be aligned, where applicable, to the provisions contained in the Self-Regulatory Codes from the Spanish Federation of Spirits, the Spanish Brewers Association and the Spanish Wine Federation. GRS note: see Alcohol Sector for translations

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

• Content rules set out in Section B apply to Outdoor advertising, except those rules specific to Broadcast media
   

In the context of roadside static advertising:
 

• Under Highways Law 37/2015 (EN); advertising is only permitted on urban sections/ stretches of road, as classified by the Ministry of Public Works and Transport (See Preamble and Art. 11(2G) Law 37/2015)
• Article 37 of the Highways Law includes advertising provisions:
   

• Outside of urban stretches of road it is prohibited to advertise in any place that would be visible from the road and in general any advert that could possibly capture the attention of the driver on the road, so outdoor advertising visible from motorways and highways is prohibited (Art. 37.1)
• This applies to all signs, posters, markings, shapes, logos and images, whatever their type, size (Art. 37.2)

Autonomous regional legislation

• Autonomous regions will often have legislation that affects outdoor advertising; this is particularly the case in respect of Alcohol advertising, e.g. In Madrid the Regulating Ordinance on Outdoor Advertising (ES):
  http://www.sttmadrid.es/images/pdf/PE/Ordenanza_de_Publicidad_Exterior_OPE.pdf

The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable self-regulation and legislation 

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

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

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

Identity of the marketer (Art. 8)

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

Annex I of the UCPD 

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

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

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

Article B12 ICC Code Media sponsorship

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

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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 

• Various regulatory sources prohibit for gambling advertising the depiction and targeting of minors: Principle 9 of The Gambling Code of Conduct (EN) commercial communications disseminated via electronic means in information society services; also Principle 7 Protection of Minors establishes: It is forbidden to use commercial communication addressed to children under age of 18
• The content rules set out in section B apply online, both the gambling-specific and the general rules, i.e. those that apply to all sectors; principal sources of rules for gambling marcoms are the Royal Decree 958/2020 linked above and the Gambling Code of Conduct also linked; the latter was required to reflect the Royal Decree by May 2021
• Article 9 (2b; EN) Ministerial Orders for regulated gambling activities: the gambling operator can carry out promotional activities for offering games/ gambling activities that it markets and can offer bonuses/ discounts for player registration or participation provided that such practices: b) do not contravene the provisions of Law 34/2002 on information society services (EN key clauses here; see arts. 20, 21, 22). Royal Decree 958/2020 article 13 prohibits promotional marketing to new customers and takes precedence
• The General AV Law 13/2022 (EN key clauses inc. 2022 amends) carries gambling-specific rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context

GAMBLING MARCOMS RULES SPECIFIC TO ONLINE 

Royal Decree 958/2020 article 23. Commercial communications in information society services

1. The distribution of gambling operators’ commercial communications in information society services is prohibited, except in the following cases:

1. When they are located on the web pages or applications of the operators or the  communication media that support competitive games, in the latter case exclusively regarding this type of game
2. When they are located on web pages or applications whose main activity is the offer of products or information on gambling activities defined by Law 13/2011, of May 27, as long as these web pages or applications have mechanisms to prevent access to minors and periodically disseminate messages about safe gambling. To that end, the video exchange services via  the platform and social networks are not considered web pages or applications as provided in this paragraph

1. Is accessible from the home page through a single small informational link. In this context, the Gambling authority may establish by resolution the specifications regarding the shape, size or arrangement of the aforementioned connection
2. Have mechanisms to prevent access by minors
3. Periodically disseminate messages about safe gambling

3. When they are the result offered by search engines. In those cases where the result offered is because of a commercial agreement between the advertiser and the search engine owner, only when that search uses words or phrases directly connected to the gambling activities defined by Law 13/2011, of May 27.
4. When sent via email or other equivalent means, in accordance with the provisions of article 24
5. When they are distributed as commercial audiovisual communications in video sharing services through the platform according to the provisions of article 25
6. When they are distributed on social networks, per article 26 provisions

2. For the purpose of facilitating the functioning of parental control mechanisms, gambling operators’ commercial communications in information society services will incorporate an identifier that enables gambling-related recognition
3. Gambling operators’ commercial communications in information society services will not overlap the main content of the page or application, blocking the major part of said content, without there being a prior action of the user, with the exception of those that are developed exclusively in the operator's own portal. In any case, communications commercials will never block navigation and must be able to be closed or its execution stopped easily
4. Commercial communications from gambling operators may not be located on web pages or applications that, in turn, promote gambling activities of entities without an enabling title in Spain, presenting them as aimed at residents in Spain, or on web pages or applications whose content violates the applicable intellectual property regulations

WELCOME BONUSES AND PROMOTIONS 

Promotions to attract new customers are prohibited whatever the conditions of the promotion (Art. 13 Royal Decree 958/2020)

• For welcome bonuses advertised on internet banners/ micro-banners, the information referenced in clause 4.4 of the Gambling Code of Conduct (EN unofficial) should be implemented as follows:

• Reference should be made in the communication that the bonuses are subject to conditions ('bono sujeto a condiciones') available on the gambling operator’s website
• Conditions of the promotional bonus should be shown separately from the other terms and conditions displayed on the website. In the case of banners and micro-banners, the marketing communication must include a link to such as a landing page which becomes a mandatory step for a user prior to registration or gambling
• In all cases, the content of the initial marketing communication must not be likely/ liable to mislead
• In the case of bonuses/ vouchers advertised via micro-banners, if the inclusion of the caption 'bono sujeto a condiciones' cannot be inserted due to limited space and the static nature of the medium, the hyperlink must lead in every case to the landing page mentioned in para. 2

GENERAL ONLINE CHANNEL SELF-REGULATION 

• The gambling sector must also observe the ‘general’ content rules that apply to all sectors. Those are set out in full under the General tab in section B; the core set of rules is Autocontrol’s Code of Advertising Practice (EN)
• The general channel (i.e. placement) rules also apply. These are set out below under the General tab. Principal source of rules in the online channel in all forms is Autocontrol’s Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version; translation of key provisions here
• Autocontrol published in October 2020 the Code of Conduct on the Use of Influencers in Advertising (ES), in force January 2021. There’s an unofficial GRS English translation here. The code applies to all sectors, and defines when Influencer advertising qualifies as such and sets out identification requirements. Our assumption is that the use of Influencers would anyway not be permitted under the new rules, as Influencers would presumably fall under the description: people or characters of relevance or public profile, use of whom is prohibited in commercial communications (art. 15, RD). We suggest you get in touch with Autocontrol before any commitment

GENERAL ONLINE CHANNEL LEGISLATION  

• There is extensive channel legislation applicable in electronic marketing communications, in three principle areas, covered in depth under the General tab. ‘Snapshot’ immediately below

• e-Commerce: Law 34/2002 on Information Society Services and electronic commerce known as LSSI or LSSICE (EN / ES). Title III Electronic Commercial Communications, Articles 8, 10, 19, 20. Scope is set out in the annex of the linked document
• Personal Data Processing: Most of the channels that follow will involve the deployment of marketing databases; in the event that processing includes personal data (that which can identify individuals) then lawful processing rules from the GDPR may apply
• Royal Legislative Decree 1/2007 (ES / EN key clauses inc. 2022 amends) the General Consumer and User Protection Act, which largely applies to the relationships and contracts entered into between consumers and companies, but which carries under article 20 the rules on advertising that constitutes an 'Invitation to Purchase.'
• Law 3/1991 on Unfair Competition (EN key clauses inc. 2022 amends), carries the core European legislation on commercial practices/ communications from the Unfair Commercial Practices Directive 2005/29/EC and the amends introduced by Directive 2019/2161 related to search rankings, consumer reviews and international marketing; see arts. 26/27 and 5 of Law 3/1991 
• The General AV Law 13/2022 (EN key clauses inc. 2022 amends), while applicable to all sectors, also carries gambling-specific scheduling rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context

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

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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

• Per intro above, online advertising is subject to the rules set out in content section B, except those specific to broadcast. if it’s advertising, it’s in remit. The key set of content rules is from Autocontrol’s Code of Advertising Practice (EN)
• The Confianza Online Ethical Code is an important source of online channel rules. The code linked is the 2022 version in Spanish, key provisions from which are unofficially translated here
• 24/11/20. A Code of Conduct on the use of Influencers in advertising from the Association of Spanish Advertisers and Autocontrol. The code entered into force on January 1st, 2021. The Code in Spanish is the applicable version; it's unofficially translated by GRS here

APPLICABLE LEGISLATION 

Non-exhaustive

• E-COMMERCE: Law 34/2002 on Information Society Services and Electronic Commerce (LSSI) EN key clauses / ES. Title III Electronic Commercial Communications, Articles 8, 10, 19, 20. Scope is set out in the Annex shown in the linked document; information requirements shown below 
• PERSONAL DATA PROCESSING: most of the channels that follow will involve the deployment of marketing databases; in the event that processing includes personal data (that which can identify individuals) then lawful processing rules from the GDPR may apply
• CONSUMER PROTECTION: the core marketing and commercial communications legislation in Spain is Law 3/1991 on Unfair Competition EN key clauses / ES inc. 2022 amends; applicable online
• Royal Legislative Decree 1/2007 ES / EN (key clauses inc. 2022 amends) the General Consumer and User Protection Act, which largely applies to the relationships and contracts entered into between consumers and business people or companies, but which carries under article 20 the rules on advertising that constitute an 'Invitation to Purchase.'
• The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024

SELF-REGULATION 

• Autocontrol’s Code of Advertising Practice (EN); applicable to all media 
• Confianza Online Ethical Code (COEC) is specific to electronic distance communications media EN key clauses / ES (both 2022)
• The Autocontrol Influencer Code of Conduct 2020 ES / EN defines when Influencer advertising qualifies as such and sets out identification requirements
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD

INTERNATIONAL/ GUIDELINES 

• From a self-regulatory perspective, the document that guides Digital Marketing Communications (DMCs) is the European Advertising Standards Alliance's (EASA) 2023 DMC Best Practice 
• The ICC Advertising and Marketing Communications Code (EN), which underpins much of self-regulation worldwide, includes a specific Chapter C, Direct Marketing and Digital Marketing Communications. Some rules are shown under the relevant channel headings that follow. The full code is linked
• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR

e-Commerce information requirements (from legislation)

• In the context of e-Commerce, the information requirements from articles 10 and 20 LSSI (EN key clauses) relating to an information society service provider and article 20 for rules on an ‘Invitation to Purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase from RLD 1/2007 (EN key clauses) apply
• The Confianza Self-Regulatory Code also carries a chapter on e-Commerce
• Rules for both of the above entries are set out under the later section headed emails/SMS

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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

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

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

Meta and self-regulation December 2023 

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

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

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

Logan & partners/ Mondaq November 28, 2023

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

• Directive 2000/31/EC on electronic commerce

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

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

•  

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

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

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

C2. Identification and transparency

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

Article C3 – Presentation of the offer
 

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

C2. Identity of the marketer

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

SECTION C: COOKIES AND OBA

Spain Supreme Court overturns gambling ad restrictions 

IGB April 10, 2024. And DLA Piper here April 11

• While there no rules particular to the gambling sector’s use of cookies, commercial communications that are addressed/ directed to children under the age of 18 are prohibited (7.6 Gambling Code of Conduct)
• The general cookie rules, i.e. those that apply to all sectors, gambling included, are shown below under the General tab

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)

• Various regulatory sources prohibit for gambling advertising the depiction and targeting of minors: Principle 9 of The Gambling Code of Conduct (EN unofficial) commercial communications disseminated via electronic means in information society services; also Principle 7 Protection of Minors establishes: It is forbidden to use commercial communication addressed to children under age of 18
• OBA, like any other advertising, is subject to the content rules for gambling set out in our earlier section B, as well as the content and channel rules for all sectors shown under the General tab
• Principal sources of rules for gambling marcoms are the Royal Decree 958/2020 linked above see annuls and the Gambling Code of Conduct (required to be in line with the Royal Decree by May 2021) also linked above, and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN) 
• The Royal Decree carries some placement rules specific to information society services; these have been set out under the preceding header Online Commercial Communications 
• Signatories to the Gambling Code of Conduct must incorporate the warning/ responsibility message in commercial communications; see content section B, point 2.6; see also articles 10 and 11 of Royal Decree 958/2020 (EN)
• General channel rules, i.e. those that apply to all sectors gambling included, are primarily from Autocontrol’s Confianza Online Ethical Code ES. The link is to the 2022 Spanish version
• OBA specifics from this code are shown below under the General tab, together with the self-regulatory programme from the EDAA
• The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors

SECTION C: COOKIES AND OBA

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 

• COOKIES: Law 34/2002, regarding Information Society Services and electronic commerce known as LSSI or LSSICE. Title III Electronic Commercial Communications, Article 22.2 EN / ES
• DATA PROCESSING: see GDPR reference above. The national act that sits ‘alongside’ GDPR is the Law on Data Protection and Digital Rights (ES) of 5 December 2018
• Guide on the Use of Cookies (ES) July 2023. From the AEPD Spanish DPA, Agencia Española de Protección de Datos
• Autocontrol’s cookie advice service in English is available here
• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR
• IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising
• From ICAS' March 2022 newsletter: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here

• DATA PROCESSING: The Confianza Online Ethical Code (2022; ES) Data protection section reflects GDPR. An official translation from Autocontrol is in hand. Meanwhile, unofficial translation of the key articles here
• DATA PROTECTION: Autocontrol incorporate data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here (EN)
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here
• COOKIES: Confianza Online Ethical Code. Article 27 of the 2022 version linked above:

1. The use of cookies (including other similar devices) by the affiliated entities will be subject to the provisions of the Law on Information Society Services or the regulations that replace it
2. For the use of cookies not excepted from obtaining informed consent in accordance with the regulations, the affiliated entities must obtain said informed consent in accordance with the provisions of the GDPR. In particular, the affiliated entities will take into account the following: 

1. When describing the purpose of the cookies, ambiguous descriptions will be avoided
2. The consent must in any event be express and, in the cases required by data protection regulations, explicit (therefore, in no circumstances will consent obtained under the ‘continue browsing’ formula be valid)
3. If third-party cookies are used, the data subject will be informed of this

3. For illustrative purposes and for a better understanding given its complex nature, Confianza Online recommends that the affiliated entities follow the guidelines set by the Spanish Agency for Data Protection in their current version or later, as well as the use of the examples published in the Guide on the use of cookies.
   https://www.aepd.es/es/documento/guia-cookies.pdf

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

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

Effective 19th January 2022

• OBA is the same as any other advertising in the sense that it is subject to the content rules set out in our section B, except those specific to broadcast. Principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• Express consent is required for third party cookies; they will be treated the same as first party cookies. Opt-out mechanisms are not valid
• Legal reports issued by AEPD provide requirements regarding the use of third party cookies/ tracker cookies in OBA. These are in Spanish; we have translated the relevant section of p. 4 AEPD 2014-0196, as follows:

‘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

• Note: the report referenced in the above is pre GDPR. The AEPD have ‘archived’ this and other reports in a database that can be accessed here, though we have come second in a wrestle with the search function. More recent reports are available here

SECTION C: COOKIES AND OBA

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

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

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

Third party cookie plans for Chrome. WFA view here 

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

Applicable legislation, self-regulation and guidance 

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

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

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

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

• And in July 2021 the Guide to Contextual Advertising

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

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

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

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

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

• Commercial communications addressed/ directed to children under the age of 18 are prohibited (7.6. Gambling Code of Conduct)
• The content rules set out in section B apply - both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B
• Principal sources of rules for gambling marcoms are the Royal Decree 958/2020 linked above and the (unofficial EN) Gambling Code of Conduct (required to be in line with the Royal Decree by May 2021), and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN) 
• Principle 9 (self-regulatory principles of commercial communications disseminated via electronic means in information society services) of the Gambling Code of Conduct linked above states: ‘Besides applying the principles established in Sections 1 to 7 of the Code herein and in Law 34/2002, of 11 July, on Information Society and Electronic Commerce Services, it is established as a specific principle within this area that pop-up advertisements may be easily closed and do not prevent browsing’. This rule may not apply to emails per se, though these can form part of an ‘information society service.’
• The warning/ responsibility messages (see our earlier section B) will be required
• The Royal Decree carries some placement rules specific to information society services under article 23; these have been set out under the preceding header Online Commercial Communications; gambling commercial communications are permitted when ‘When sent via email or other equivalent means, in accordance with the provisions of article 24.’ This follows:

1. Sending commercial communications from gambling operators via email or other equivalent electronic means of communication may only be carried out with the consent of the interested person, in accordance with the provisions of article 7.2.a) of Law 13/2011, of 27 May, and in article 21.1 of Law 34/2002, of July 11, on Information Society Services and Electronic Commerce
2. Gambling operators that market games whose participation requires the  previous opening of a user registration will not be able to send any type of commercial communication through electronic mail or other equivalent electronic means of communication addressed to:

1. Persons whose registration in the General Register of Bans on Access to Gambling is disclosed to the operator by the gambling authority
2. Persons who have exercised their ability to self-exclude
3. Persons who have developed risky behavior, according to the systems and detection protocols provided for in article 34

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

• The general channel (i.e. placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in Spain reflects the applicable Directives 2002/58/EC in being opt-in / soft opt-in and E-Commerce rules from 2000/31/EC. Specifics under the General tab below
• The self-regulatory Confianza Online Ethical Code (COEC), updated February 2022 ES / EN key clauses also applies; the code covers 'electronic distance media’ and includes rules on data protection, e-commerce, protection of minors and digital advertising 
• The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
• If a marketing communication constitutes an ‘Invitation to Purchase’ Definition Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase Royal Decree 1/2007 ES / EN applies; article 20. More below under the General tab

• 43. Commercial communications should not target vulnerable players in particular by making use of unsolicited commercial communications addressed to players who have self-excluded from gambling or have been excluded from receiving online gambling services on reasons of problem gambling (Commission Recommendation 2014/478/EU)

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

STANDARD RULES 

• Content of electronic commercial communications is subject to the rules set out in our earlier content section B, except those rules specific to broadcast. The principal source of rules is Autocontrol's General Code of Advertising Practice (EN) and in this online context the Confianza Online Ethical Code. The linked latter code is the 2022 version in English. Key provisions unofficially translated here. The code contains a single article (23) under the header 'Advertising' to indicate content rules in electronic commercial 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

1. APPLICABLE LEGISLATION

• DATA PROCESSING: If data for the sending of electronic communications is processed and it constitutes personal data, i.e. that which identifies an individual, then the GDPR may apply. Privacy issues should be reviewed with specialist advisors
• E-COMMERCE: Law 34/2002 on information society services and electronic commerce, known as LSSI. Title III Electronic Commercial Communications Articles 19, 20, 21 EN key clauses / ES applicable B2C and B2B; implements E-Privacy Directive 2002/58/EC Article 13, as well as the E-Commerce Directive 2000/31/EC
• CONSUMER PROTECTION: Royal Legislative Decree 1/2007 the General Consumer and User Protection Act ES / EN article 20 for ‘Invitation to Purchase’ Definition Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase
• Art 29 (2) of Law 3/1991 (EN key clauses) on Unfair Competition; this is the clause prohibiting ‘unsolicited and repeated proposals/ offers by telephone, fax, e-mail or by other means of distance communications’. This law also represents the core legislation in commercial practices/ marketing communications, transposing the UCPD 2005/29/EC and applicable online
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lex here 

2. APPLICABLE SELF-REGULATION 

• Confianza Online Ethical Code (COEC); the 2022 version in Spanish is here; key provisions unofficially translated here 
• IAB Spain legal guide on e-mail marketing ES 

• The ICC Advertising and Marketing Communications Code (EN); see 2.2. below

• Autocontrol include data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here

DATA PROTECTION: EDPB GUIDANCE

• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR

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

• Commercial communications sent by email (incl. SMS, MMS) must be clearly identifiable as such and the natural or legal person on behalf of whom they are made must also be clearly identifiable (Art 20.1 LSSI; Art 96 (1) RLD 1/2007)
• In emails (incl. SMS/ MMS) containing promotional offers such as discounts, premiums and gifts and promotional competitions or games, the necessary prior consent must have been obtained; the requirements in Article 20.1 must be complied with along with applicable commercial laws and regulations (Art. 20.2)
• Such promotional offers in addition to promotional competitions or games must be clearly identifiable as such, and the conditions necessary to qualify or participate must be easily accessible and presented clearly and unambiguously (Art. 20.2)
• The provisions of the preceding paragraphs shall be without prejudice to the provision of regulations issued by the Autonomous Communities (Art. 20.3)
• It is prohibited to send commercial communications by email which disguise or conceal the identity of the sender; as well as encourage recipients to visit websites which contravene the provisions of Article 20 LSSI (Art 20.4 LSSI)

1.2. CONSENT AND OPT-OUT 

Key clauses

• Consent is based on an opt-in regime: it is prohibited to send advertising or promotional communications by electronic mail or another equivalent means of electronic communication when it has not been requested or expressly authorised in advance by the recipient of the communications (Art 21.1 LSSI)
• Soft Opt-in: as an exception, the provisions of the previous paragraph will not apply where there is a prior contractual relationship, provided:
   
  • The contact details of the recipient have been lawfully collected
  • The commercial communication sent relates to products or services (from the same provider/ company) which are similar to those previously purchased by the customer (Art 21.2 LSSI)
     
• In all cases, a free-of-charge and easy to use opt-out procedure must be available at the time of data collection and in each subsequent commercial communication (Art. 21.2 LSSI; Art. 96(4) RLD 1/2007)
• When commercial communications have been sent by email, they must include a valid e-mail address where recipients can exercise their right to opt-out. It is prohibited to send communications which do not include such an address (Art 21.2 (3rd para) LSSI and Art. 22.1 (2nd para) LSSI)
• The recipient can at any time revoke his/ her consent to receiving commercial communications by simply notifying the sender of such a desire (Art. 22.2 LSS); information on the free and simple means/ way of revoking consent must be provided electronically (Art. 22.2 2nd para)

1.3 PERSONAL DATA; B2C solely

• When personal data has been used for commercial communications without obtaining consent (soft opt-in principle above, or the personal data has been obtained from sources accessible to the public, see Art. 6.2 LOPD), the recipient must be provided with the following information: the origin of the data; the identity of the controller, as well as the rights available to the data subject, including the opportunity to object to receiving communications (Art 96.6 RLD 1/2007)
• Note that the situation above should be reviewed in light of the GDPR; check with the AEPD or advisors whether the opt-out scenario continues to apply when using sources accessible to the public

1.4. HARASSMENT

• Under Art. 29 (2) of Law 3/1991 Unfair Competition Act, aggressive practices using harassment will be considered unfair commercial practices in all cases and under all circumstances (Art. 19.2):
   
  • Making unsolicited and repeated proposals/ offers by e-mail, except in circumstances and to the extent legally justified to comply with a contractual obligation, shall be deemed unfair
  • In these communications, the businesses (senders) must use systems that enable the consumer to object to receiving commercial proposals/ offers from them
  • The above is without prejudice to the provisions from existing regulations on personal data protection (GDPR), Information Society Services (i.e. LSSI), telecommunications and distance contracting with consumers or users (i.e. RLD 1/2007), including the distance contracting of financial services

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark 

Posted June 2024

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

SECTION C: MARKETERS' OWN WEBSITES

The same principle that applies in paid space also applies in 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

• Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures to restrict access to such websites by minors (Art.  C7, ICC Code)
• The General AV Law 13/2022 (EN key clauses inc. 2022 amends) applies to all sectors but also carries gambling-specific rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context
• The content rules set out in section B apply to marketing communications in this channel – both the gambling-specific and the general rules, i.e. those that apply to all sectors. Principal sources of rules for gambling marcoms are Royal Decree 958/2020 linked above and the Gambling Code of Conduct (EN unofficial), required to be brought in line with the Royal Decree by May 2021, and for general rules in Spain Autocontrol’s Code of Advertising Practice (EN)
• Principle 9 (self-regulatory principles of commercial communications disseminated via electronic means in information society services) of the Gambling Code of Conduct linked above states: ‘Besides applying the principles established in Sections 1 to 7 of the code herein and in Law 34/2002, of 11 July, on Information Society and Electronic Commerce Services, it is established as a specific principle within this area that pop-up advertisements may be easily closed and do not prevent browsing’.
• The warning/ responsibility messages will apply to commercial communications; see section B, point 2.6 and articles 10 and 11, Royal Decree 958/2020 (EN)

1. The distribution of gambling operators’ commercial communications in information society services is prohibited, except in the following cases:

1. When they are located on the web pages or applications of the operators or the  communication media that support competitive games, in the latter case exclusively regarding this type of game
2. When they are located on web pages or applications whose main activity is the offer of products or information on gambling activities defined by Law 13/2011, of May 27, as long as these web pages or applications have mechanisms to prevent access to minors and periodically disseminate messages about safe gambling. To that end, the video exchange services via the platform and social networks are not considered web pages or applications as provided in this paragraph

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:

1. Is accessible from the home page through a single small informational link. In this context, the Gambling authority may establish by resolution the specifications regarding the shape, size or arrangement of the aforementioned connection
2. Have mechanisms to prevent access by minors
3. Periodically disseminate messages about safe gambling

3. When they are the result offered by search engines. In those cases where the result offered is because of a commercial agreement between the advertiser and the search engine owner, only when that search uses words or phrases directly connected to the gambling activities defined by Law 13/2011, of May 27
4. When sent via email or other equivalent means, in accordance with the provisions of article 24
5. When they are distributed as commercial audiovisual communications in video sharing services through the platform according to the provisions of article 25
6. When they are distributed on social networks, per article 26 provisions

2. For the purpose of facilitating the functioning of parental control mechanisms, gambling operators’ commercial communications in information society services will incorporate an identifier that enables gambling-related recognition
3. Gambling operators’ commercial communications in information society services will not overlap the main content of the page or application, blocking the major  part of said content, without there being a prior action of the user, with the exception of those that are developed exclusively in the operator's own portal. In any case, communications commercials will never block navigation and must be able to be closed or its execution stopped easily
4. Commercial communications from gambling operators may not be located on web pages or applications that, in turn, promote gambling activities of entities without an enabling title in Spain, presenting them as aimed at residents in Spain, or on web pages or applications whose content violates the applicable intellectual property regulations.

Some other articles impact on marketers' own websites; see e.g. article 13 promotional activities from the link above 

• The general channel (i.e. placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in Spain reflects the applicable directives 2002/58/EC in being opt-in / soft opt-in and e-Commerce rules from 2000/31/EC. Specifics under the General tab below
• If a marketing communication constitutes an ‘Invitation to Purchase’ Definition Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase Royal Decree 1/2007 ES / EN (2022); article 20 applies. More below under the General tab 
• The most significant self-regulatory influence in channel rules in this context is Autocontrol’s Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version; translation of key provisions here. The code applies to ‘electronic distance media’ and covers data protection, e-commerce, protection of minors and digital advertising 
• The General AV Law 13/2022 (EN key clauses) carries gambling-specific rules under article 123/7 and is referenced above accordingly. The law also includes the European rules in part from Directive 2010/13/EU on issues such as stereotyping, discrimination, gender identity, human dignity etc. Recent amends extend scope into video-sharing services where there are new commercial communication identification requirements

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. 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 

• Content rules from our earlier section B apply to advertising (as defined) on or from owned websites, except those rules specific to broadcast channels. The principal source of content rules is the Autocontrol Code of Advertising Practice (EN)

APPLICABLE LEGISLATION AND SELF-REGULATION 

Legislation/ guidance 

• DATA PROCESSING: Per the reference in the introduction above, website owners processing data that may be defined as personal data should be aware that lawful processing rules from the GDPR may apply; In the case of Spain, the Regulation is ‘recognised’ by the new Data Protection Act (ES), whose purpose is to ‘adapt the Spanish legal system to Regulation (EU) 2016/679.’ Former national data protection laws are repealed 
• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR
• E-COMMERCE: Law 34/2002 (LSSI) regulates commercial communications in e-commerce, implementing the e-Commerce Directive 2000/31/EC and article 13 (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 are in the preceding section, Emails and SMS
• COOKIES: The same Law 34/2002 carries the ‘Cookie Directive’ rules; see our earlier Cookies and OBA section for further information, though this is a complex area in Spain especially, and best reviewed with advisors
• CONSUMER PROTECTION: The following laws also regulate online communications as they regulate all forms of communication. Provisions are spelt out in our content section B; the links are here just in case:

• Law 3/1991 on Unfair Competition (EN key clauses inc. 2022 amends)
• Law 34/1988 on General Advertising (EN key clauses inc. 2022 amends)
• Royal Legislative Decree 1/2007  (EN key clause) in particular article 20, information requirements for an ‘invitation to purchase’

Self-regulation

• The principal self-regulatory influence in this channel context is the Confianza Online Ethical Code (COEC); 2022 version in Spanish here; key provisions unofficially translated here. Some of the most relevant articles shown below 
• EASA Digital Marketing Communications Best Practice 2023; see section 2.2.5 for guidance on marketer-owned digital properties
• The EASA Best Practice Recommendation on Influencer Marketing 2023 is not binding, but it is helpful guidance on how European regulators should approach this marketing technique
• Autocontrol include data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here (EN)
• 24/11/20. A code of conduct on the use of Influencers in advertising has been published by the Association of Spanish Advertisers and Autocontrol. The code entered into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here, the English version shown alongside the original Spanish
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here

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

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

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2023

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

SECTION C: NATIVE ADVERTISING

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

• The ‘native’ form of advertising is like any other advertising in the sense that it’s subject to the content rules, in this context Royal Decree 958/2020 linked above and the The Gambling Code of Conduct (EN unofficial), and for general rules in Spain, Autocontrol’s Code of Advertising Practice (EN)
• Commercial communications addressed / directed to children under the age of 18 are prohibited (7.6. Gambling Code of Conduct)
• Gambling warning/ responsibility messages must be included in marketing communications (6.2. Gambling Code of Conduct). See articles 10 and 11 of the Royal Decree 958/2020 linked above 
• A reminder of the Identification rules from the Gambling Code of Conduct set out in content section B in 3. Principle of identification: ‘Marcoms must be easily identifiable and clearly recognisable as such’

Article 7 RD 958/2020. Principle of identification of commercial communications and the advertiser

1. Commercial communications from gambling operators must be clearly identifiable and recognisable as such. Without prejudice to the fact that different formulations, terminology or presentation may be used for this purpose, the requirement set out in this section shall be understood to have been fulfilled when the commercial communication includes clearly and noticeably, in a manner appropriate to the medium through which it is disseminated, the word "publicidad" (advertising), the abbreviation "publi" (ad) or similar, or when it is inserted in advertising breaks or spaces clearly identifiable as such by the recipient
2. In gambling operators’ commercial communications, the corporate name or the commercial name or image of the gambling operator whose activities are promoted. Commercial communications, whatever their format, will not mislead the identification of the operator that actually carries out the activity being promoted
3. It is forbidden for an operator to use trademarks, trade names to identify itself and differentiate itself from other operators, without these being owned or owned by the business group to which said operator belongs. Commercial communications about specific games marketed by an operator are excluded from this prohibition
4. Gambling operators’ commercial communications may not contain references to games or bets related to the results of the games or draws of another operator, nor to their intellectual or industrial property, without the prior authorisation of the latter. The acts of comparison provided for in article 10 of Law 3/1991, of January 10, on Unfair Competition, are excluded from this provision, which are allowed under the terms provided in said regulation

All sectors; see also General tab below

• Law 3/1991 of 10th January on Unfair Competition (EN key clauses inc. 2022 amends) includes from the ‘blacklist’ of commercial practices originated in UCPD 2005/29/EC: Covert commercial practices. Payment by entrepreneurs or professionals 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 unfair (Art. 26)

SECTION C: NATIVE ADVERTISING

CONTEXT

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. 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)

SECTION C: NATIVE ADVERTISING

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

ICC Advertising and Marketing Communications Code (EN 2024)

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

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

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

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

Identification and transparency (Art. 7)

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

Identity of the marketer (Art. 8)

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

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

Commercial practices which are in all circumstances considered unfair

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

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