SECTION A OVERVIEW

Updates since May 2022 (slimmed)

First enforcement of sponsorship ambush Decree (EN)
Above from Portolano Cavallo/ Gala May 2022

EU green claims regulation December 2022

Meta’s Ad Practices Ruled Illegal Under E.U. Law

Above from the NYT Jan 2023

Directive 2019/2161 transposed via LD No.26 

EN trans of the above in text. CMS Italy here

Green Claims Directive Proposal. March 22, 2023

IAP Code art. 27 amended for crypto assets 

Related guidelines here (IT). March 22, 2023

DPA Dark Patterns ruling RPC/ Lex July 7, 2023

Brand Safety and Influencer Marketing white paper 

Above from Flu; IAP contributed. July 2023 (IT)

Q&A: online advertising in Italy. ICT Sept 29, 2023

Garante fines energy co. 10m euros (IT) Oct 23, 2023

AGCOM proceedings V Meta/Instagram (IT) Nov 2023

AGCOM findings (IT) v Chiara Ferragni (EN) € I mil

Katten commentary on above here (EN) Jan 31, 2024

AGCOM guidelines on influencers (IT). Jan 10, 2024

De Berti Jacchia  commentary Jan 25, 2024 here (IT)

Prohibited and controlled advertising in Italy
Above from Jacobacci Avvocati March 12, 2024

And misleading practices same date and co.

Agcom Influencer guidelines (IT) CMS view here (EN) Jan 2024 

IAP Influencer report (IT) November 2023

Important Garante case GALA October 6, 2023

Above re data retention indicates new stance from regulator

SELF-REGULATION

The Code of Marketing Communication Self-Regulation (IT / EN), which is administered by IAP, provides the core advertising rules in Italy. The code sets out the general rules of conduct in Title I, covers rules for 'sales systems' (e.g. distance selling and prize promotions) in Title II A and specific product categories under Title II B. IAP’s Digital Chart (IT / EN) reviews the most commonly used forms of online marcoms including influencer marketing (blogging/ vlogging/ celebrity; see GALA commentary July 5, 2023 here), native, in-app, SNS, advergames, and establishes criteria for the recognisability of these in line with article 7 of the IAP Code, Identification of advertising. Details under our channel section C, or see the linked file.

CONTENT LEGISLATION

Statutory regulation of advertising is from the Consumer Code (IT / EN key clauses inc. 2023 amends) LD 206/2005 which implemented the Unfair Commercial Practices Directive UCPD 2005/29/EC and protects consumers against e.g. misleading and aggressive advertising or marketing; LD 145/2007 (EN / IT) which implemented article 14 UCPD 2005/29/EC protects businesses from misleading advertising, and sets out conditions for comparative advertising (art. 4); and article 2598 (EN) of the Italian Civil Code on unfair competition. Details under content section B or see the linked documents. This case, courtesy of Gala/ Lex November 2021, is an example of how the Consumer Code is applied by the authorities, specifically the Italian Competition Authority AGCM, in the context of some apparently dubious advertising from Crystal Drops co. on the TikTok platform. What is new in the Italian Consumer Code from ICT Legal Consulting January 2022 sets out amends to the Consumer Code that relate largely to sales contracts and the supply of digital content, transposing measures from directives 2019/771 (Sale of Goods Directive) and 2019/770 (Digital Content and Digital Services Directive). More recent (March 2023) amends are a result of transposition from Directive 2019/2161 delivered by Legislative Decree No. 26 of March 7, 2023 (IT), which introduces clauses related to search rankings and how they are achieved, the validity of consumer surveys, the consistency of international campaigns and promotional pricing requirements, the latter shown under the Pricing header later in this section. See E-commerce and new specific information requirements from CMS Italy March 21, 2023 and for a broader picture Prohibited and controlled advertising in Italy (EN) from Jacobacci Avvocati March 12, 2024.

CHANNEL LEGISLATION 

Broadcast/ AV/ Influencers

The arrival of Directive 2018/1808, which significantly amended the scope of the AVMS Directive 2010/13/EU by extending rules online and into video-sharing platforms in particular, was recognised by the Legislative Decree of 8 November 2021, No. 208 (IT), which largely repealed the former AVMS Code. This is a significant move in AV regulation, reflecting the 'digitisation' of European audiovisual media. Commercial communication content rules are not significantly changed, however - the Directive's amends in that context are here. Arguably the most significant development is the new rules under article 28b of the Directive and 41/42 of the Decree for video-sharing platforms (VSPS). These rules include the application of the Directive's commercial communication articles linked earlier to VSPS and require the platforms to make available to those who post video(s) a means by which they can declare if such videos contain commercial content, if known, and similarly the platform must advise users accordingly. There is some debate about whether Influencers/ vloggers constitute an 'audiovisual media service.' Best source for understanding the issue and the regulators' view of it is ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers (EN). Channel section C for more, or see the linked documents. In January 2024, Agcom (Autorità per le Garanzie nelle Comunicazioni (AGCOM) is the communication industries regulator) launched their Influencer guidelines (IT); CMS Italy commentary here.

Privacy/ online commercial communications 

Privacy issues should be overseen by specialist advisors

Data protection complaints about the use of ChatGPT in Italy

Harting/ Lex June 19, 2023

The Data Protection Code (DPC) LD 196/2003 (IT), containing provisions for the adaptation of national law to Regulation 2016/ 679 (GDPR) was amended and re-named (as shown) by LD 101/2018 (IT); section 1 of the DPC now provides that the processing of personal data will be according to the standards of GDPR (see para below). There’s an English translation of the DPC from the Data Protection Authority Garante here (Dec 2021 text). Section 130 of the DPC covers unsolicited communications, implementing the e-Privacy Directive 2002/58/EC providing for opt-in consent to electronic communications. Some data processing aspects of the article are now subject to GDPR. Legislative Decree 70/2003 IT / EN (the e-Commerce law, relevant articles: 7 - 9,12,13), which implements the e-Commerce Directive 2000/31/EC inter alia provides requirements applicable to advertising from ‘information society services.’ There's a 'succinct Q&A on the law and practice surrounding online advertising in Italy, covering key regulations and restrictions' from ICT Legal Consulting here (Oct 2022). European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021, are here. And finally, Garante/ GPDP published in July 2021 Guidelines for cookies and other tracking tools (IT); the English version is on the link or here. Finally finally, this Feb 27, 2023 piece from CMS Italy/ Lex is a helpful catch-up with the EDPB cookie banner task force findings and potential implications in Italy.

GDPR application

Important Garante case GALA October 6, 2023

Above re data retention indicates new stance from regulator

Meta’s Ad Practices Ruled Illegal Under E.U. Law. From the NYT Jan 2023

The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. Member states, Italy included, tend to retain their national privacy legislation and ‘recognise’ GDPR. Italy’s key data protection law LD 196/2003, referenced above, was amended following an enabling law 163/2017 (IT) and Guidelines (IT) from Garante, the Data Protection Authority. There’s a helpful blog on those from DLA Piper here. Garante published on 24 May 2021 European Regulation: Guidelines for DPOs (IT) and in English The Personal Data Protection Code from March 2020, as linked above, which lays down the provisions to adapt the national legislation to GDPR. Specific rules related to the above are set out by channel in our section C, headers as relevant. See this significant piece from August 2022 The Garante warns against personalised ads based on legitimate interest by Orsingher Ortu Avvocati Associati/ Lex.

SECTION B CONTENT RULES

1. SELF-REGULATION; IAP Code

1.1. Fairness

1.2. Misleadingness

1.3. Terminology/ statistical data

1.4. Testimonials

1.5. Guarantees and warranties

1.6. Substantiation

1.7. Identification

1.8. Superstition, credulity, fear

1.9. Violence, vulgarity, indecency

1.10. Moral, civil, & religious beliefs; human dignity
1.11. Children and young people

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

1.12. Protection of the natural environment

1.12b. Safety

1.13 Imitation, confusion and exploitation

1.14. Denigration

1.15. Comparative advertising

1.16. Variability

1.17. IAP Digital Chart

1.18. IAP Jury Decisions

2. LEGISLATION

2.1. Consumer Code

2.2. LD 145/2007 Comparative advertising

2.2.1. Case law and IAP rulings

2.3. Rules in audiovisual media 

3. SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.1.1. Self-regulation (national)

3.1.2. International self-regulation

3.1.3. Horizontal statutory legislation

3.1.4. Commission guidance

3.2 Pricing in advertising

1. SELF-REGULATION

The Code of Marketing Communication Self-Regulation IT / EN 

• Marketing communication must be honest, truthful and correct. It must avoid anything likely to discredit it (Art. 1)
  See ruling from the IAP Jury regarding article 1 (and 10), in this case advertising deemed to discredit:
  http://www.g-regs.com/downloads/ITGenIAPrulingArt10Moby.pdf

1.2. Misleading marketing communication (Art. 2)

• Marketing communication must avoid statements or representations that could mislead consumers, including omissions, ambiguity or exaggeration that are not obviously hyperbolical, particularly regarding the characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes or awards
• In assessing whether or not a marketing communication is misleading, the benchmark is the reasonable consumer belonging to the relevant target group

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

• Terms, quotations and references to scientific and technical tests must be used appropriately. Technical and scientific tests and statistical data with limited validity must not be presented in such a way as to make them appear generally valid (Art. 3, Terminology, data)
• Testimonials and other forms of recommendation of a product, with a promotional intention, should be distinguishable as such as well as authentic and responsible (Art. 4, Testimonials)
• Mandatory guarantees cannot be communicated in such a way as to convey the belief that they offer rights greater or different to those provided by law, when they do not (Art. 5, Guarantees and warranties)
• Should guarantees or warranties be communicated that are greater or different to those that are mandatory, such marketing communication must specify the contents and conditions of the guarantee or warranty offered, or alternatively provide a brief but comprehensive description thereof together with reference to the written sources of information available at the point of sale or supplied with the product (Art. 5 Guarantees and warranties)
• The contents of marketing communication must be capable of substantiation; such substantiation should be available to the Jury or Review Board to prove the truthfulness of the data, descriptions, statements, illustrations used and the consistency of any testimonies (Art. 6, Substantiation)

1.7. Identification (Art. 7)

• Marketing communication must be clearly distinguishable as such. In the media and in the marketing communication when news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable as such via the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations 
• See ruling from the IAP Jury regarding article 7
   

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

• Marketing communication should not play on superstition, credulity or, except in justifiable cases, fear (Art. 8, Superstition etc.)
• Marketing communication should not contain statements, audio or visual treatments depicting physical or moral violence or, that may be considered indecent, vulgar or repugnant to prevailing standards (Art. 9, violence, vulgarity)
• Marketing communication should not offend moral, civil and religious beliefs (Art. 10, Morality etc.)
• Marketing communication should respect human dignity in every form and expression and should avoid any form of discrimination, including that of gender (Art. 10, Morality etc.)

See rulings from the IAP Jury regarding article 10:
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Aquilantibath.pdf

http://www.g-regs.com/downloads/ITGenIAPrulingArt10Mobyb.pdf

http://www.g-regs.com/downloads/ITGenIAPrulingArt10Santhe.pdf

• Special care should be taken in marcoms directed to (or to which they may be exposed) children (U12) and young people
• Such marcoms must not contain anything that could cause psychological, moral or physical harm to children or young people (adolescents), and must not take advantage of their natural credulity, lack of experience or their sense of loyalty
• In particular, such marcoms must not suggest:

• Violating generally accepted rules of social behaviour
• Acting dangerously or seeking exposure to dangerous situations
• That failure to posses the promoted product means either their own inferiority or their parents’ failure to fulfil their duties
• That the role of parents and educators is inadequate in supplying healthy nutritional advice
• Adopting poor eating habits or neglecting the need for a healthy lifestyle

• Marketing communication for food products and beverages directed to children, or to which they might be exposed, is also subject to the provisions contained in the specific Regulation, which forms an integral part of this Code (the Regulation to which this point refers is here in Italian and here in English on the IAP website, otherwise downloaded here in English)
• Marketing communication must not include a direct exhortation to children to buy the promoted product or to persuade other people to purchase it
• The portrayal of children and young people in marketing communication must avoid playing on the natural sentiments of adults towards the young
• Visual depictions of children, or persons resembling children, engaged in or seeming to engage in sexually explicit conduct are prohibited

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

• Advertising claiming or suggesting environmental or ecological benefits must be based on truthful, pertinent and scientifically verifiable evidence (Art.12, Environmental protection)
• Such advertising must ensure a clear understanding of which aspect of the product or activity the claimed benefits refer to (Art. 12, Environmental protection)
• Marketing communication involving products that may potentially endanger health, safety or the environment, especially when such dangers are not immediately recognisable, should indicate such dangers clearly (Art. 12 bis, Safety)
• In any case marketing communication should not contain descriptions or representations that may lead consumers to be less cautious than usual or less watchful and responsible towards their own health and safety, including body images inspired by aesthetic models clearly associated with eating disorders that are harmful to health (Art. 12 bis, Safety)
• Marketing communication should not copy or slavishly imitate that of others even if it concerns non-competitive products, especially if there is the risk of generating confusion with the marketing communication of others (Art. 13, Imitation, exploitation)
• Moreover, any exploitation of the name, trademark, notoriety and corporate image of other marketers should be avoided, if it is intended to generate an undue advantage (Art. 13, Imitation, exploitation)
• Marketing communication should not denigrate the activities, companies or products of others, even if not specifically named (Art. 14, Denigration)

1.15. Comparative advertising (Art. 15)

• Comparative advertising is permitted when it helps to explain the technical or financial features and benefits of promoted products and services, objectively comparing the relevant basic, technically verifiable and representative features of competitive goods and services, that meet the same needs or are intended for the same purpose
• Comparisons should be fair and not be misleading, nor generate the risk of confusion, or discredit or denigrate others. Comparisons should not draw unfair advantage from the notoriety of others

1.16. Variability (Art. 16)

• Marketing communication which is acceptable for one medium or product may not necessarily be acceptable for another, due to the different characteristics of the various media and products
• In the cases referred to in articles 17 (credit sales), 18 (distance selling), 21 (prize promotions), 27 (financial and real estate transactions), 28 (package tours) and 46 (social marcoms) below, messages that are limited to general statements are permitted to omit all the relevant necessary information
• Compliance of a marketing communication with the provisions of the Code does not rule out the right of the media to decide, based on their contractual autonomy, to reject it on the grounds that it breaches stricter criteria they may have put in place

1.17. IAP Digital Chart

• The IAP Digital Chart IT / EN establishes the criteria for the recognition or detectability of common forms of online marketing communications in compliance with Article 7 of the IAP Code. Details in Channel Section (Online Commercial Communications and Native). See also ruling below on article 7

1.18. Jury decisions

Also shown above under relevant articles; the linked files are summaries in English

• A jury ruling reference article 10 relating to ‘Moral, Civil, and Religious Beliefs and Human Dignity’, in this case finding against a poster that is ‘crude’ and ‘sexist’
  http://www.g-regs.com/downloads/ITGenIAPrulingArt10Aquilantibath.pdf
• A jury ruling reference article 10 and article 1 relating to ‘Moral, Civil, and Religious Beliefs and Human Dignity’, in this case finding against a particularly patriotic appeal that has ‘no foundation’:
  http://www.g-regs.com/downloads/ITGenIAPrulingArt10Mobyb.pdf
• A jury ruling reference article 10 relating to ‘Moral, Civil, and Religious Beliefs and Human Dignity’, in this case ruling against a particularly sexist presentation of a soft drink:
  http://www.g-regs.com/downloads/ITGenIAPrulingArt10Santhe.pdf
• This jury ruling, relating to article 7 Identification, is important because it finds against some of the frequently used techniques that are found on the web that fail to clarify that content is sponsored/ paid for:
  http://www.g-regs.com/downloads/ITGenIAPrulingArt7Taboolab.pdf

On 11th February 2019, IAP launched a new online database containing all the formal adjudications from 1966 to present day, with real-time updates. This new tool ‘greatly simplifies the identification of adjudications and allows users to login through different devices. The database is available through a subscription, free for the first 30 days.’

https://archivio.iap.it/

2. LEGISLATION

• Consumer Code LD 206/2005; unofficial translation here (inc. 2023 amends)
• LD145/2007 on Comparative Advertising IT /  EN
• LD 208/2021 (IT) transposing the AVMS Directive 

2.1. Key clauses Consumer Code

• This is the key legislation that can and does affect marketing and advertising in Italy and indeed all member states as it is transposed from the Unfair Commercial Practices Directive 2005/29/EC; it is this legislation that may be used in e.g. any actions against environmental claims 
• The key articles are 20-22, which address Prohibition of unfair commercial practices, Misleading actions and Misleading omissions respectively, the latter including requirements for any ‘Invitation to Purchase’ Definition Means 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 (Art. 18i) 
• Sections 23 & 26 contain the list of commercial practices which shall in all circumstances be regarded as misleading and aggressive, respectively; known as the blacklist 
• The Consumer Code LD 206/ 2005 was amended in March 2023 a result of transposition from Directive 2019/2161 delivered by Legislative Decree No. 26 of March 7, 2023 (IT), which introduces clauses related to search rankings and how they are achieved, the validity of consumer surveys, the consistency of international campaigns and promotional pricing requirements, the latter shown under the Pricing header later in this section. These amendments are included in the EN translation of the Consumer Code linked above 

2.2. Key clauses LD 145/2007 (EN); Comparative advertising Section 4

Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

1. It is not misleading within the meaning of Sections 21, 22 and 23 of Legislative Decree No 206 of 6 September 2005 enacting the ‘Consumer Code’
2. It compares goods or services meeting the same needs or intended for the same purpose
3. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
4. it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor
5. It does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor
6. For products with designation of origin, it relates in each case to products with the same designation
7. It does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
8. It does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name

2.2.1. Case law and AGCM and IAP rulings

Case law is reported essentially verbatim; in some instances, commentary has been taken from online contributions. None of this text represents a view or guidance from GRS, but information to be interpreted as marketers, agencies, or advisors see fit

• Plasmon vs. Barilla: Court of Milan ruled that the compared foods were ‘non-homogenous’ as they are intended for consumers of different ages; Plasmon for children under 3 and Barilla for adults. We are unable to access a link to the case itself, but there is a solid report here:
  http://www.g-regs.com/downloads/ITCompPlasmonBarillab.pdf
• The IAP Jury ruled the comparison to be legitimate but the advertising misleading. The case is in Italian here:
  http://www.g-regs.com/downloads/ITCompAdIAPAdjudicationBarillaPlasmon_2011.pdf
• And the advertising is here:
  http://www.g-regs.com/downloads/ITCompAdExamplePlasmon-Barilla.jpg
• Also see in this context Freeze/ Botox case here, reviewed by the Competition Authority AGCM
• European Court of Justice Case C-159/09, Lidl SNC vs. Vierzon Distribution SA which advised that comparative price advertising for foods is permitted under Directive 84/450/EEC (now Directive 2006/114/EC)

2.3. Content rules in audiovisual media 

• The Audiovisual Media Services Directive, amended by Directive 2018/1808 and transposed in Italy by LD 208/2021 (IT), sets out commercial communication content rules consisting largely of protection for minors, anti-discrimination rules, the environment, health and safety, and some Alcohol rules, assembled here
• Rules apply in  audiovisual media services within EU member states, those services defined here in summary, or see the link to the Directive. Video-sharing platforms are now in scope and some vlogs, which may be from influencers and constitute an 'audiovisual media service', may also be subject to the rules. The paper from ERGA Analysis and recommendations concerning the regulation of vloggers is the definitive view on the issue

3. SPECIFIC CLAIM AREAS

3.1. Environmental

3.1.1 Self-regulation (national)

Article 12 IAP Code; Protection of the Natural Environment:

• Advertising claiming or suggesting environmental or ecological benefits must be based on truthful, pertinent and scientifically verifiable evidence
• Such advertising must ensure a clear understanding of which aspect of the product or activity the claimed benefits refer to

Example cases:

• Injunction No. 14/17 of 6/3/17 IT re print ad for cosmetic Vitality’s ‘Zero’ hair colouring cream. The claim “la prima colorazione con etichetta ambientale, buona con te, buona con l’ambiente” (the first colourant with an environmental label, good with you, good with the environment) was ruled in breach of article 12, as well as articles 2 misleadingness and 23, health claims. The Review Board confirmed that article 12 prohibits generic claims;
• Jury Decision No. 69/2016 of 28/10/2016 IT and summary IT. The advertising focused on the ecological/ environmental qualities of diapers (100% natural, produced with raw materials of plant origin, biodegradable, compostable, Chemical free, Antibacterial - Phthalate-free). It was ruled contrary to articles 2 and 12, as the messages would induce consumers to believe, wrongly, that the nappies were natural, biodegradable and compostable.
• The IAP website includes a section of archived decisions from the Review Board and Jury from 2011-2017 and includes archived decisions relating to ‘Green Claims’, accessible here

3.1.2. International self-regulation

The ICC Advertising and Marketing Communications Code (EN) will apply, in particular:

• General Provisions; Section I of the Code, and
• Chapter D: Environmental Claims in Marketing Communications section

• These principles apply to all marcoms containing environmental claims, i.e. any claim in which explicit or implicit reference is made to environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products, regardless of the medium, including labelling, package inserts, promotional and point-of-sales materials, product literature as well as via telephone or digital or electronic media such as e-mail and the Internet
• The ICC Framework for Responsible Environmental Marketing Communications (November 2021). 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 

3.1.3. 'Horizontal' legislation

The Unfair Commercial Practices Directive UCPD 2005/29/EC transposed into Italian law by the Consumer Code IT / EN (inc. 2023 amends)

• There is no 'general' EU legislation harmonising environmental marketing claims; specific provision is made for sectors such as energy-related and organic products
• UCPD provisions apply to all claims made in the context of B2C commercial practices; the directive is part-designed to complement sector-specific EU legislation as a ‘safety net’ by ‘filling the gaps’ (recital 10 UCPD)
• Competitors may challenge environmental claims as unfair commercial practices before national courts, and the Autorita Garante della Concorrenza e del Mercato (the Market and Competition Authority) may also adjudicate; claims are assessed against the UCPD/ IT Consumer Code, application of which has been incorporated into a separate paper here:
  http://www.g-regs.com/downloads/ITGenApllicationUCPD2Environmental.pdf

3.1.4. Commission guidance

Guidance on the application of Directive 2005/29/EC on Unfair Commercial Practices December 2021, Section 4.1.1. Environmental claims

​

3.2 PRICING

Check prices in advertising with legal advisors

3.2.1. Self-regulation

• IAP Code of Marketing Communication Self-Regulation (IT / EN) Art. 2 Misleading marketing communication. Marketing communication must avoid statements or representations that could mislead consumers, including omissions, ambiguity or exaggeration that are not obviously hyperbolical, particularly regarding the characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes or awards. In assessing whether or not a marketing communication is misleading, the benchmark is the reasonable consumer belonging to the relevant target group

3.2.2. Legislation and key case

• Italian Consumer Code LD 206/2005 from articles 21, 22, 23; unofficial trans EN inc. 2023 amends, for specific pricing clauses articles 13-17 EN, which transpose elements of the Product Pricing Directive (PPD) 98/6/EC. Some pricing guidance included within the UCPD Commission Guidance linked above under point 3.1.4
• In amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for reduced/ promotional pricing. These should have come into force in member states on May 28, 2022; in Italy, transposition from the directive was delivered in March 2023 by Legislative Decree No. 26 of March 7, 2023 (IT), which amended article 17 shown in the above linked file in English
• Court of Justice of the European Union (CJEU): C‑476/14 (Citroën/ZLW) Judgement and AG Opinion; the CJEU ruled that car retailers may not advertise a price that does not include all necessary and unavoidable costs. This is an important judgement

SECTION D SRO SERVICES

COPY ADVICE

IAP (the self-regulatory body Istituto dell’Autodisciplina Pubblicitaria) provides copy advice on request and subject to a fee of 900€ + VAT for IAP members and 1.000€ + VAT for non-members. The whole list of tariffs can be found here on the IAP website.

The validity and completeness of the information, supplied with the approval of the advertisement, binds the IAP Review Board not to intervene against the approved communication. Copy advice is given within five working days, but particularly complex cases may require up to eight working days. In practice, however, the process usually takes less time. IAP can also offer an “express copy advice” within 24 hours.

The IAP website home page is http://www.iap.it

COMPLAINTS HANDLING 

• IAP handles complaints from consumers, competitors and other interested parties
• Fee: 
   
  • Consumers: Free
  • Competitors: 3,500€ (IAP members) and 4,000€ (non-members)
     
• Complaints must be submitted via an online form or in writing
• File a complaint here
• View decisions - here

CLEARANCE

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

SECTION E SOURCES/ LINKS

GDPR

Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018

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

The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

European Data Protection Authority

Article 29 Working Party/ EDPB

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

https://edpb.europa.eu/.

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

Article 29 Working Party archives from 1997 to November 2016: 

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

Five more recent and significant documents:

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

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

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

Commercial practices: UCPD

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

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

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

https://eur-lex.europa.eu/eli/dir/2005/29/oj
​Guidance: On 17 December 2021, the European Commission adopted the Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version

The Omnibus Directive 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

Pricing

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

https://eur-lex.europa.eu/eli/dir/1998/6/oj

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

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

Comparative advertising

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

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

Audiovisual media

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

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

AVMSD amendment

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

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

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

e-Privacy

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

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

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

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

e-Privacy Regulation draft (10 February 2021)

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

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

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

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

e-Commerce

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

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

The Digital Services Act

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

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

The Digital Markets Act

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

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

Consumer protection

Consumer Code. Legislative Decree No. 206 of 6 September 2005. Entry into force 23/10/2005. The Code applies to all forms of advertising regardless of the means used. Key amendments are from Legislative Decree August 2, 2007, No. 146 implementing the Unfair commercial Practices Directive (UCPD) 2005/29/EC (see arts. 18-27 Consumer Code), and Legislative Decree February 21, 2014 No. 21 implementing the Consumer Rights Directive 2011/83/EC (arts. 45-67 Consumer Code). This is the core legislation related to marketing and advertising, covering misleadingness in the form of misleading acts and omissions and including rules on 'invitation to purchase' (art. 22) and distance selling. Directive 2019/2161 - the Omnibus Directive - amended both the UCPD and the Product Pricing Directive PPD 98/6/EC, creating new rules in the UCPD related to the transparency of search rankings, the authenticity of consumer reviews and the consistency of international campaigns. New price reduction rules were established in the PPD. These amends were transposed (rather late in Italy) by the Legislative Decree No. 26 of March 7, 2023 (IT) into the Consumer Code and are found under articles 17, 22 and 23:

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206!vig=

Unofficial non-binding GRS translation:

http://www.g-regs.com/downloads/ITConsumerCode2023EN.pdf

Business protection 

Legislative Decree of 2nd August 2007, No. 145. Implementing Article 14 of Directive 2005/29/EC, amending Directive 84/450/EEC on misleading advertising, now codified as Directive 2006/114/EC concerning misleading and comparative advertising. Entry into force 21/09/2007. The Decree is exclusive to the protection of businesses, as Directive 2006/114/EC applies to B2B relations. Article 4 sets out the conditions under which comparative advertising is considered lawful. The Decree covers advertising only where such advertising may harm a competitor, but does not cause direct consumer detriment. Where a consumer is affected, the Consumer Code is applicable.

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2007-08-02;145!vig=

AGCM translation is here

Italian Civil Code

Royal Decree of 16 March 1942 No. 262. Approval of the text of the Civil Code. (GU 79 of 04.04.1942) Entry into force 19.4.1942:

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:regio.decreto:1942-03-16;262!vig=  

- Section 2250 provides the information that must be shown on websites/ emails; mirrors the provisions set out in Article 7 LD 70/2003

- Section 2598 outlines the basic principles of unfair competition and does not include any direct reference to advertising. However, practice in some case law has taken advantage of the broad definition provided in article 2598 (3) to incorporate misleading, confusing or denigrating advertising within the meaning of acts of unfair competition. In the case L’Oreal v Johnson & Johnson, comparative advertising was deemed to constitute unfair competition. Article 2598 (3) states that: “anyone commits an act of unfair competition who directly or indirectly uses any other means not in conformity with the principles of professional correctness, and able to damage another’s company”. English translation of key articles:

http://www.g-regs.com/downloads/ITCivilCode2250_2598.pdf 

e-Commerce

Legislative Decree of 9th April 2003, No. 70. Entry into force 14/05/2003. Implementing Directive 2000/31/EC on certain legal aspects of information society services; known as the E-Commerce Directive. This decree applies to Information Society Service Providers (ISSP’s), defined as “any service normally provided for remuneration, at a distance, by electronic means, and at the individual request of a recipient of the service” (Art. 2 LD 70/2003). The requirement for an ISS to be “normally provided for remuneration” does not restrict scope to services giving rise to buying and selling online; the Decree also covers services that are not directly remunerated by those who receive them, such as those services offering online information. The Decree establishes information requirements for commercial communications, i.e. any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity, or exercising a regulated profession (Art. 8). Article 12 sets out information required to conclude a contract electronically.

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-04-09;70!vig=

English translation of relevant articles:

http://www.g-regs.com/downloads/ITLDApr03Ecommerce.pdf