SECTION C: TV & RADIO/ AV

In brief: media law and regulation in India from INDUSLAW/ Lex June 2022

Television in India from Wikipedia 

• The content rules set out in our earlier Section B should be observed in all channels. As well as the (non-exhaustive) extracts below that relate more specifically to TV, all commercial communications are subject to the full codes or rules or laws except where rules are print or online specific, and may well be reviewed under more 'general' terms such as those for misleadingness, decency etc. 
• The principal sources of rules (excepting those from the CTN act set out below) are the ASCI code of self-regulation and the CCPA advertising guidelines, or to give them their full title 'Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.'
• The CCPA advertising guidelines linked above require under article 8 (3) children targeted advertisements: An advertisement for junk foods, including chips, carbonated beverages and such other snacks and drinks shall not be advertised during a program meant for children or on a channel meant exclusively for children.

• The Cable Television Networks (Regulation) Act, 1995, known as the CTN act, from which is article 6 - Advertisement code: 'No person shall transmit or re-transmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed Advertisement Code,' extracted in full below or see the linked code 

Rule 7. Advertisement Code

1. Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers.
2. No advertisement shall be permitted which:

1. derides any race, caste, colour, creed and nationality;
2. is against any provision of the Constitution of India;
3. tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way;
4. presents criminality as desirable;
5. exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary;
6. in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well established norms of good taste and decency;
7. exploits social evils like dowry, child marriage;
8. promotes directly or indirectly production, sale or consumption of:

1. Cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants; provided that a product that uses a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, may be advertised on cable service subject to the following conditions that:

1. the story board or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner;
2. the advertisement must not make any direct or indirect reference to the prohibited products;
3. the advertisement must not contain any nuances or phrases promoting prohibited products;
4. the advertisement must not use particular colours and layout or presentations associated with prohibited products;
5. the advertisement must not use situations typical for promotion of prohibited products when advertising the other products;

Provided further that:
 

1. the advertiser shall submit an application with a copy of the proposed advertisement along with a certificate by a registered Chartered Accountant that the product carrying the same name as cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants is distributed in reasonable quantity and is available in substantial number of outlets where other products of the same category are available and the proposed expenditure on such advertising thereon shall not be disproportionate to the actual sales turnover of the product;
2. All such advertisements found to be genuine brand extensions by the Ministry of Information and Broadcasting shall be previewed and certified by the Central Board of Film Certification as suitable for unrestricted public exhibition and are in accordance with the provisions contained in sub-clause (i) to (v) of the first proviso, prior to their telecast or transmission or retransmission.

2. infant milk substitutes, feeding bottle or infant food.

3. No advertisement shall be permitted, the objects whereof, are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end. (3A) No advertisement shall contain references which hurt religious sentiments;
4. The goods or services advertised shall not suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986;
5. No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or supernatural property or quality, which is difficult of being proved;
6. The picture and the audible matter of the advertisement shall not be excessively loud;
7. No advertisement which endangers the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner shall not be carried in the cable service;
8. Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements;
9. No advertisement which violates the Code for self-regulation in advertising, as adopted by the Advertising Standard Council of India (ASCI), Mumbai, for public exhibition in India, from time to time, shall be carried in the cable service;
10. All advertisement should be clearly distinguishable from the programme and should not in any manner interfere with the programme viz., use of lower part of screen to carry captions, static or moving alongside the programme;
11. No programme shall carry advertisements exceeding twelve minutes per hours, which may include up to ten minutes per hour of commercial advertisements, and up to two minutes per hour of the channel’s self-promotional programmes. 

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), 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 to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

​

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), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. 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)

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.

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 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 to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Q&A: Online advertising in India. AZB & Partners September 29, 2023

In brief: media law and regulation in India from INDUSLAW/ Lex June 2022

India - Data Protection Overview. One Trust data guidance November 2022

• The content rules set out in our earlier Section B should be observed for all advertising activity online. As well as the (non-exhaustive) extracts below that relate more specifically to some online techniques, all 'advertisements' are subject to the full codes or rules or laws. The ASCI code linked below defines an advertisement as follows: 'a paid-for communication, addressed to the  public or a section of it, the purpose of which is to promote, directly or  indirectly, the sale or use of goods and services to whom it is addressed. Any communication which in the normal course may or may not be recognized as advertisement by the general public, but is paid for or owned  or authorized by the Advertiser or their Advertising Agency would be  included in the definition.' 
• The CCPA guidelines, also linked below, define various forms of advertising (see article 2) but leaves the definition of advertising itself to the Consumer Protection Act, from which the CCPA springs: 'an advertisement means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.' Chapter I Section 2. Advertising is very broadly defined, therefore.
• The principal sources of rules are the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment.

• Influencer: An Influencer is someone who has access to an audience and the power to affect their audiences’ purchasing decisions or opinions about a product, service, brand or experience, because of the influencer’s authority, knowledge, position, or relationship with their audience.
• Virtual Influencer: Virtual influencers, are fictional computer generated ‘people’ or avatars who have the realistic characteristics, features and personalities of humans, and behave in a similar manner as influencers.
• Material connection: A material connection is any connection between an advertiser and influencer that may affect the weight or credibility of the representation made by the influencer. Material connection could include, but is not limited to benefits and incentives, such as monetary or other compensation, free products with or without any conditions attached including those received unsolicited, discounts, gifts, contest and sweepstakes entries, trips or hotel stays, media barters, coverage, awards, or any family or employment relationship, etc.
• Digital media: Digital Media is defined as a means of communication that can be transmitted over the internet or digital networks, and includes communication received, stored, transmitted, edited or processed by a digital media platform. Digital media includes but is not limited to:

​

1. Internet (advergames, sponsored posts, branded content, promotional blogs, paid-for links, gamification, in-game advertising, teasers, viral advertising, augmented reality, native advertising, connected devices, influencers, etc.)
2. On-demand across platforms, including near video on demand, subscription video on demand, near movie on demand, free video on demand, transactional video on demand, advertising video on demand, video on demand, pay per view, etc.
3. Mobile broadcast, mobile, communications content, websites, blogs, apps, etc./digital TV (including digital video broadcasting, handheld and terrestrial), etc.
4. NSTV (non-standard television)
5. DDHE (digital delivery home entertainment)
6. DTT (digital terrestrial television)

As digital media becomes increasingly pervasive and more consumers start to consume advertising on various digital platforms, it has become important to understand the peculiarities of these advertisements and the way consumers view them. With lines between content and advertisements becoming blurry, it is critical that consumers must be able to distinguish when something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain. Consumers may view such messages without realising the commercial intent of these, and that becomes inherently misleading, and in violation of clause 1.4 (misleading by omission) and 1.5 (abuse trust of consumers or exploit their lack of experience or knowledge).

1. Disclosure All advertisements published by social media influencers or their representatives, on such influencers’ accounts must carry a disclosure label that clearly identifies it as an advertisement.

• 1.1 The following criteria must be used to determine if disclosure is required:

1. Disclosure is required if there is any material connection between the advertiser and the influencer.
2. Material connection is not limited to monetary compensation. Disclosure is required if there is anything of value given to mention or talk about the advertiser’s product or service. For example: If the advertiser or its agents gives free or discounted products or service, or other perks, and then the influencer mentions one of its products or services, a disclosure is needed even if they were not specifically asked to talk about that product or service.
3. Disclosures are required even if the evaluations are unbiased or fully originated by the influencer, so long as there is a material connection between the advertiser and influencer.
4. If there is no material connection and the influencer is telling people about a product or service they bought and happen to like, that is not considered to be an advertisement and no disclosure is required on such posts.

• 1.2 Disclosure must be upfront and prominent so that it is not missed by an average consumer

1. It should be placed in a manner that is hard to miss.
2. Disclosures are likely to be missed if they appear only on an ABOUT ME or profile page, or bios, at the end of posts or videos, or anywhere that requires a person to click MORE.
3. Disclosure should not be buried in a group of hashtags or links.
4. Using a platform’s disclosure tool should be considered in addition to an influencer’s own disclosure.
5. If the advertisement is only a picture or video post without accompanying text (such as Instagram stories or Snapchat), the discloser label needs to be superimposed over the picture/ video, and it should be ensured that the average consumer is able to see it clearly.

1. For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 3 seconds.
2. For videos longer than 15 seconds, but less than 2 minutes, the disclosure label should stay for 1/3rd the length of the video.
3. For videos which are 2 minutes or longer, the disclosure label must stay for the entire duration of the section in which the promoted brand or its features, benefits etc., are mentioned.

6. In live streams, the disclosure label should be announced at the beginning and the end of the broadcast. If the post continues to be visible after the live stream is over, appropriate disclosure must be added to the text/caption.
7. In the case of audio media, the disclosure must be clearly announced at the beginning and at the end of the audio, and before and after every break that is taken in between.

• 1.3 The disclosure must be made in a manner that is well understood by an average consumer.

1. Following is the list of disclosure labels permitted. Any one or more can be used:

• Advertisement
• Ad
• Sponsored
• Collaboration
• Partnership
• Employee
• Free gift 
• “Paid Partnership” tag on Instagram
• Affiliate
• “Includes Paid Promotion” tag on YouTube

2. The disclosure should be in English OR in the language as the advertisement itself, in a way that is easy for an average consumer to understand.

• 1.4 A virtual influencer must additionally disclose to consumers that they are not interacting with a real human being. This disclosure must be upfront and prominent.
• 1.5 Responsibility of disclosure of material connection and also of the content of advertisement is upon the advertiser for whose product or service the advertisement is, and also upon the influencer. For clarity, where advertiser has a material connection with the influencer, advertiser’s responsibility will be to ensure that the posted influencer advertisement is in line with the ASCI code and its guidelines. While the influencer shall be responsible for making disclosures required under the guidelines, the advertiser, shall, where needed, call upon the influencer to delete or edit an advertisement or the disclosure label to adhere to the ASCI Code and Guidelines.

2. Due Diligence. The influencers are advised to review and satisfy themselves that the advertiser is in a position to substantiate the claims made in the advertisement.

If an influencer/advertiser disputes that the piece of communication in question is not an advertisement as there is no material connection, the following evidence will be required to be submitted to ASCI:

1. A declaration from the advertiser stating that there is no material connection between them and the influencer as on the date of the post. This declaration needs to be signed by a senior member of the advertiser’s organisation such as the Marketing Head, Legal/ Compliance Head, and Digital Marketing Head or similar.
2. In the event that the advertiser of the brand featured is difficult to trace in spite of reasonable efforts, or if the piece of communication features brands of multiple advertisers, then proof of purchase of featured products and brands, provided by the influencer, would be considered adequate evidence to refute material connection. 

2. Scope and applicability

1. Save as otherwise expressly provided by the Central Government by notification, these rules shall apply to:

1. all goods and services bought or sold over digital or electronic network including digital products;
2. all models of e-commerce, including marketplace and inventory models of e-commerce;
3. all e-commerce retail, including multi-channel single brand retailers and single brand retailers in single or multiple formats; and
4. all forms of unfair trade practices across all models of e-commerce:

 Provided that these rules shall not apply to any activity of a natural person carried out in a personal capacity not being part of any professional or commercial activity undertaken on a regular or systematic basis.

2. Notwithstanding anything contained in sub-rule (1), these rules shall apply to a e-commerce entity which is not established in India, but systematically offers goods or services to consumers in India.

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

• Rules, as you might expect, largely relate to the information that should be provided to consumers by platforms and the processes to be applied in the course of transactions. An advertising-specific clause relates to sellers on e-commerce platforms under article 6: (4)(c) ensure that the advertisements for marketing of goods or services are consistent with the actual characteristics, access and usage conditions of such goods or services;
• Some other commercial communications on the e-commerce platform may fall under the definition of advertising in ASCI codes and the CCPA guidelines and will therefore be required to observe the respective rules.

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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), 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 

Also be aware of:

The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation

The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market

The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)

Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth

And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 

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

C1. 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 communication should be transparent to the consumer
• 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

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

Future of targeted and behavioral advertising in India - Analysing CJEU’s Judgment on Meta Platforms

Lakshmikumaran & Sridharan January 15, 2024

• In the cookies context, the key legislation and accompanying rules are the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022). India - Data Protection Overview from One Trust data guidance November 2022 is a clear and complete summary of the data protection framework in India 
• Bird&Bird's Global Cookie Review of Winter 2022 includes rules from India. 'There are no specific Indian laws regulating cookies. Under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“SPDI Rules”), which set out general data protection obligations, consent of the information provider is the only ground for the collection of sensitive personal data or information or “SPDI” – a subcategory of personal data that includes passwords, financial information, physical, physiological and mental health conditions, sexual orientation, medical records and history, and biometric information. While the use of cookies does not require consent, to the extent cookies are used to collect SPDI, consent must be obtained prior to the deployment of such cookies. Separately, market practice has also evolved in a manner where organisations generally seek consent for the use of cookies, regardless of whether any SPDI is collected through such use.' There's more in the linked review
• OBA is the same as any other advertising in as much as it is subject to the advertising rules - those mainly being the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment. As far as we can establish, there is no EDAA equivalent operating in India 

SECTION C: COOKIES AND OBA

'It’s time to move': Google on Global Ads on cookie deprecation, privacy regulation, AI

Campaign Asia February 29, 2024

Consent Rules Apply to Broader Range of Tracking Technologies

McDermott Will &Emery January 18, 2024

EASA Jan 2024 update on the Commission's cookie pledge and GDPR

New EDPB guidelines on the scope of the ‘cookie rule’. DLA Piper Nov 22, 2023

Guidelines here. This is re technical scope 

'Reject All' button in cookie consent banners - An update from the UK and the EU

Reed Smith LLP/ Lex November 8, 2023

Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*

Covers interplay between the AI act, the DSA and GDPR 

Files prior to the above date here 

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

• February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here

• 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

• In the context of data protection rules, which will apply to the processing of list data, the key legislation and accompanying rules are the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022). India - Data Protection Overview from One Trust data guidance November 2022 is a clear and complete summary of the data protection framework in India. 
• In terms of the content of email advertising, requirements are the same as for any other advertising in as much as it is subject to the advertising rules - those mainly being the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give the latter their full title, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment.

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• 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
• 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 apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
• 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 

General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:

• When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations

19.1. Collection of data and notice

• When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter

19.2. Use of data

Personal data should be:

• collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
• adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
• accurate and kept up to date
• preserved for no longer than is required for the purpose for which the data were collected or further processed

19.3. Security of processing

• Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures

19.4. Children’s personal data

• When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
• Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
• Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
• Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
• Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
• For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7

19.5. Privacy policy

Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented

19.6. Rights of the consumer

Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:

• opt out of direct marketing lists
• opt out of interest-based advertising
• sign on to general direct preference services
• require that their personal data not be made available to third parties for their marketing purposes; and
• rectify incorrect personal data which are held about them

• Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9

19.7. Cross-border transactions

• Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended

Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked code 

SECTION C: MARKETERS' OWN WEBSITES

• The key issue in this owned environment is which communications are in the remit of the various applicable rules. As far as we can establish, there is no specific definition of what's in remit in the owned environment, though advertising as defined in the ASCI Code linked below contains references to that environment: 'An Advertisement is defined as a paid-for communication, addressed to the  public or a section of it, the purpose of which is to promote, directly or  indirectly, the sale or use of goods and services to whom it is addressed. Any communication which in the normal course may or may not be recognized as advertisement by the general public, but is paid for or owned  or authorized by the Advertiser or their Advertising Agency would be included in the definition.'
• The CCPA guidelines take their definition of advertising from the Consumer Protection Act 2019 linked below: 'an advertisement means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.' This is obviously very broad; we can't be definitive about regulatory working practices in relation to this issue of owned space - advice should be sought if uncertain.
• In terms of 'advertising' content, owned space requirements are the same as for any other advertising in as much as it is subject to the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give the latter their full title, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment.
• In the context of data protection rules, the key legislation and accompanying rules are the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022). India - Data Protection Overview from One Trust data guidance November 2022 is a clear and complete summary of the data protection framework in India. 

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); Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2023

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

SECTION C: NATIVE ADVERTISING

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. 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) 2018

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

Guidance: ICC Guidance on Native Advertising here

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), 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

Identity of the marketer (Art. 8)

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

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

Commercial practices which are in all circumstances considered unfair

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

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

FOLLOWING USER FEEDBACK WE NO LONGER COVER TELEMARKETING 

Following feedback, we no longer cover Telemarketing 

SECTION C: DIRECT POSTAL MAIL

• The content rules set out in our earlier Section B should be observed for all advertising activity. The principal sources of rules are the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to direct mail, which is also subject to the Consumer Protection Act 2019. 
• Data processing related to this activity is regulated principally by the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022).
• The Code of Ethics of the Indian Direct Selling Association is here; the Global DMA Privacy Principles are here and the GDMA/ India website is here; the ICC Code's Direct Marketing rules are under Chapter C of the linked code 

SECTION C: DIRECT POSTAL MAIL

Applicable Self-regulation and legislation 

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

• 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
• The channel rules set out 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

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

SECTION C: EVENTS/ SPONSORSHIP

• Content of collateral and other material that supports sponsorship, while not specifically identified as in remit, is likely to be covered by the two principal sources of rules - the self-regulatory ASCI Code and the CCPA Advertising Guidelines - as both define advertising broadly
• Child-sensitive sectors such as gambling should obviously be careful to avoid events with a significant proportion of children; guidance is conventionally 25%+. Chapter B of the ICC Code is a solid source of sponsorship rules; key clauses set out below

 B1  PRINCIPLES GOVERNING SPONSORSHIP

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

 B2  AUTONOMY AND SELF-DETERMINATION

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

 B3   IMITATION AND CONFUSION

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

 B4   'AMBUSHING' OF SPONSORED PROPERTIES

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

 B5  RESPECT FOR THE SPONSORSHIP PROPERTY AND THE SPONSOR

• Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
• The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them

 B6   THE SPONSORSHIP AUDIENCE

• The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
• This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

 B7  DATA CAPTURE/ DATA SHARING

• If personal data is used in connection with sponsorship, the provisions of article 19 are applicable

SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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

B1: Principles governing sponsorship

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

B2: Autonomy and self-determination

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

B3: Imitation and confusion

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

SECTION C: SALES PROMOTIONS

We define sales promotion (SP) as the use of various marketing techniques for a pre-determined, limited time in order to increase consumer demand. As this website was created to provide international rules on marketing communications, we do not claim authority on specific national SP regulation, especially retail legislation. However, when we find relevant rules in the course of what is extensive research, we will include them in this section. We check, for example, the national self-regulatory codes and consumer protection legislation for anything that impacts SP. 

Promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.

• The content rules set out in our earlier Section B should be observed for all sales promotional activity. As well as the (non-exhaustive) extracts below that relate more specifically to sales promotions, all commercial communications are subject to the full codes or rules or laws and may well be reviewed under more 'general' terms such as those for misleadingness, decency etc. 
• The principal sources of rules are the ASCI code of self-regulation and the CCPA advertising guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Advertising and sales promotions are also subject to the Consumer Protection Act 2019, which carries a number of relevant rules set out below.
• The ICC Code, which has at least indirect relevance in the Indian market, carries sales promotional rules under Chapter A.

From the Consumer Protection Act 2019 (EN)

The definition of an unfair trade practice under Chapter I, section 2, article 47 includes:

• (i) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
• (ii) permitting the publication of any advertisement, whether in any newspaper or otherwise, including by way of electronic record, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation. For the purpose of this sub-clause, "bargain price" means:
 

1. a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise; or
2. a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;

• (iii) permitting: (a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged, in the transaction as a whole; (b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest, except such contest, lottery, game of chance or skill as may be prescribed; (c) withholding from the participants of any scheme offering gifts, prizes or other items free of charge on its closure, the information about final results of the scheme.

Explanation. For the purpose of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspaper in which the scheme was originally advertised;
 

https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/CCPA%20Notification.pdf

• 5. Conditions for bait advertisements. A bait advertisement shall fulfil the following conditions, namely:

a) such advertisement shall not seek to entice consumers to purchase goods, products or services without a reasonable prospect of selling such advertised goods, products or services at the price offered;

b) the advertiser shall ensure that there is adequate supply of goods, products or services to meet foreseeable demand generated by such advertisement;

c) such advertisement shall state the reasonable grounds which the advertiser has for believing that he might not be able to supply the advertised goods, products or services within a reasonable period and in reasonable quantities, and in particular:

i. if the estimated demand exceeds the supply, such advertisement shall make clear that the stock of the goods or services is limited;

ii. if the purpose of the advertisement is to assess potential demand, it shall be clearly stated such advertisement; and

iii. the advertisement shall not mislead consumers by omitting restrictions, including geographic restrictions and age-limit on the availability of the goods, products or services; (d) such advertisement does not mislead consumers about the market conditions with respect to the goods, products or services or the lack of their availability in order to induce consumers to purchase such goods, products or services at conditions less favourable than normal market conditions.

• 7. Free claims advertisements. A free claims advertisement shall:

a) not describe any goods, product or service to be ‘free’, ‘without charge’ or use such other terms if the consumer has to pay anything other than the unavoidable cost of responding to such advertisement and collecting or paying for the delivery of such item;

b) make clear the extent of commitment that a consumer shall make to take advantage of a free offer;

c) not describe any goods, product or service to be free, if:

i.  the consumer has to pay for packing, packaging, handling or administration of such free goods, product or service;

ii. the cost of response, including the price of goods, product or service which the consumer has to purchase to take advantage of such offer, has been increased, except where such increase results from factors unrelated to the cost of promotion; or

iii. the quality or quantity of the goods, product or service that a consumer shall purchase to take advantage of the offer has been reduced;

d) ​not describe an element of a package as free if such element is included in the package price;

e) not use the term ‘free trial’ to describe a ‘satisfaction or your money back’ offer or an offer for which a non-refundable purchase is required.

• ​From article 8, children targeted advertisements:

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​(f) include a direct exhortation to children to purchase any goods, product or service or to persuade their parents, guardians or other persons to purchase such goods, product or service for them;
(g) use qualifiers such as ‘just’ or ‘only’ to make the price of goods, product or service seem less expensive where such advertisement includes additional cost or charge;

(m) resort to promotions that require a purchase to participate and include a direct exhortation to make a purchase addressed to or targeted at children;

(4) Any advertisement which offers promotional gifts to persuade children to buy goods, product or service without necessity or promotes illogical consumerism shall be discouraged.

• From article 12, Duties of manufacturer, service provider, advertiser and advertising agency

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(e) advertisement is so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge and for this purpose:
(i) such advertisement may not make claims which use expressions such as "upto five years guarantee" or “Prices from as low as Rs.“Y", instead shall clearly indicate a fixed period of guarantee of the product or a fixed price at which the product is being offered; and in case, the product has different periods of guarantee for different parts or components, it shall clearly indicate the minimum and maximum of such periods of guarantee applicable to the relevant part or components;
(ii) if such advertisements invite the public to take part in lotteries or prize competitions permitted under any law for the time being in force or hold out the prospect of gifts, it shall clearly set out all pertinent material terms and conditions so as to enable consumers to obtain a true and fair view of their prospects in such activities;

From Chapter I of the ASCI code of self-regulation, Truthful and Honest Representation, article 1.5:

1. Products shall not be described as `free’ where there is any direct cost to  the consumer other than the actual cost of any delivery, freight, or postage. Where such costs are payable by the consumer, a clear statement that this is the case shall be made in the advertisement.
2. Where a claim is made that if one product is purchased, another product  will be provided `free’, the advertiser is required to show, as and when called upon by The Advertising Standards Council of India, that the price paid by the consumer for the product which is offered for purchase with the advertised incentive is no more than the prevailing price of the product without the advertised incentive.
3. Claims which use expressions such as “up to five years’ guarantee” or “Prices from as low as Rs. Y” are not acceptable if there is a likelihood of the consumer being misled either as to the extent of the availability or as to the applicability of the benefits offered. 

​

6. Advertisements inviting the public to take part in lotteries or prize competitions permitted under law or which hold out the prospect of gifts shall state clearly all material conditions as to enable the consumer to obtain a true and fair view of their prospects in such activities. Further, such advertisers shall make adequate provisions for the judging of such competitions, announcement of the results and the fair distribution of prizes or gifts according to the advertised terms and conditions within a reasonable period of time. With regard to the announcement of results, it is clarified that the advertiser’s responsibility under this section of the Code is discharged adequately if the advertiser and results in the media used to announce the competition as far as is practicable and advises the individual winners by post.

SECTION C: SALES PROMOTIONS

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B.

ICC Advertising and Marketing Communications Code (EN), Chapter A Sales Promotion, Chapter C Direct Marketing

For promotions and contests on social media, refer to Own Websites channel; SNS

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

Directive 98/6/EC on the Prices of Products offered to Consumers

ICC Code Chapter A Sales Promotion 

A1: Principles governing sales promotions

• All sales promotions should deal fairly and honourably with consumers
• All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
• The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
• The terms and conduct of all sales promotions should be transparent to all participants
• All sales promotions should be framed in a way that is fair to competitors and other traders in the market
• No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute