A. Overview

SECTION A OVERVIEW

 

Updates

Autocontrol review March 2020

AVMSD updates May 2020

EDPB updates Aug 2020

New links AC Code Oct 2020

DP and Influencer Codes added Nov/ Dec 2020

New AC services Jan 2021; Section D

Directive 2019/2161 Section E Jan 2021

Influencer decision, new code links, added May 2021

Consumer protection and food developments October 2021

Google's environmental claims policy October 2021

ICC Environmental framework 2021 (November)

Commission Guidance UCPD December 2021

IAB TCF Framework and GDPR. Feb 2022

Commission guidance reduced pricing 

Amends Law 3/1991 (ES) in force May 28, 2022

Draft General AV law (ES) approved June 2022

July 2022 General AV Law 13/2022 of 7 July (ES)

Google says cookie here to stay until 2024

General Advertising Law 34/1988 ES / EN

New clauses above in force October 2022

Confianza Online Ethical Code EN Oct 2022

 

 

SOME (RELATIVELY) RECENT DEVELOPMENTS

 

Spanish government publishes draft bill on 'loot boxes' and proposes prohibiting their use to minors

Osborne Clarke/ Lex July 25, 2022

 

On 22 June 2022, the Spanish Senate passed the Draft General Law on Audiovisual Communication, transposing Directive 2018/1808, which amends the AVMS Directive extending scope to video sharing platforms in particular and influencers/ vloggers also in scope subject to certain requirements. Law 13/2022 of 7 July on General Audiovisual Communication is here (ES) and key clauses in English here. Commentary July 7 from Garrigues/ Lex here.

 

Law 3/1991 on Unfair Competition (ES; EN key clauses here) is amended by Royal Decree 24/2021 to incorporate provisions from the 'Omnibus' Directive 2019/2161 related to search rankings, consumer reviews and international marketing. In force May 28, 2022.

 

SELF-REGULATION 

 

The Spanish Self-Regulatory Organisation Autocontrol main code is the Code of Advertising Practice (EN), the applicable Spanish version here. The code closely reflects national legislation and is based on and inspired by the ICC Advertising and Marketing Communications Code, which is indirectly applicable; Explanation the Autocontrol Code’s General Rules (Point 8) state that the Jury will resolve complaints by applying the Code of Practice... subsidiary to the above-mentioned standards, the ICC Code shall also be applied. Autocontrol’s Advertising Jury applies the code, which is compulsory for members of Autocontrol and voluntary for others. 

 

Autocontrol also manages 21 sectoral advertising codes, list here. Of most relevance to the General advertising rules is the Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version, the 2015 version having been amended in light of GDPR and the 2021 version also amended. Unofficial and non-binding translation of the key provisions here. The Code covers ‘electronic distance communications media’ and requires observation of a) the law and b) the Autocontrol Code of Practice linked above and is enforced by Autocontrol’s Advertising Jury; more background here.

 

A Code of Conduct on the use of Influencers in advertising entered into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. A March 2021 decision (ES) by the Autocontrol jury found transgressions in Samsung-inspired posts on Instagram. There's helpful commentary on this case from Bird & Bird via Lexology here (EN). This is an important case as it addresses the validity in Spain of the term #ad as an identifier, considered by the jury to be not necessarily understood by Spanish readers. The key rule is para 5 of the linked Influencer code. 

 

LEGISLATION IN CONTENT 

 

The EU Directives on unfair B2C commercial practices UCPD 2005/29/EC and misleading and comparative advertising MACAD 2006/114/EC will apply in parallel and without limitation to the advertising of any sector. Background note here. At national level, the following laws carry the EU requirements:

 

- Law 3/1991 on Unfair Competition EN / ES (inc. 2022 amends)

- Law 34/1988 on General Advertising EN / ES (inc. 2022 amends)

- Law 7/1996 on Retail Trade EN / ES, which principally affects sales promotions and

- Royal Legislative Decree 1/2007 ES  (2022) in particular Article 20 (EN) inc. information requirements for an ‘invitation to purchase’

 

Law 34/1988 on General Advertising, which covers broader aspects of advertising in society such as the portrayal of stereotypes and the protection of children, and Law 3/1991 on Unfair Competition, are Spain’s principal advertising laws. See also Q&A: misleading advertising practices in Spain from Jacobacci Abril/ Lex of March 2022

 

CHANNEL RULES FRAMEWORK - statutory

 

AV

 

The General Law on Audiovisual Communication 13/2022 of 7 July EN key clauses / ES, implementing the AVMS Directive 2010/13/EU and its revisions via Directive 2018/1808, regulates audiovisual media, both traditional TV/ Radio, and On-Demand services (and now video-sharing services), and sets out the rules for both content and placement of audiovisual commercial communications, which include 'spot' advertising, teleshopping, product placement and sponsorship. This law is supplemented by Royal Decree 1624/2011 EN / ES on AV communications in TV advertising, which covers e.g. marcoms during the broadcasting of sports events. 

 

Data protection

 

Management of personal data protection measures should be reviewed with specialist advisors. Meanwhile, as will be well understood, GDPR became directly applicable in member states from May 2018; the European Commission page on GDPR is here. Member states deal with the Regulation differently; in the case of Spain, the Law on Data Protection and Digital Rights (ES) adapts the Spanish legal system to GDPR. The Data Protection Agency AEPD oversees compliance. Autocontrol have recently added data protection measures to their new (2019) Code. These have been extracted from the Code and are shown here. More recently, Autocontrol have published the Code of Conduct for Data Processing in Advertising Activities (EN), operational from 1 January 2021. Specific rules and guidance are set out in Channel Section C under the relevant headers.

 

Cookies and E-commerce

 

Law 34/2002 of 11 July on Information Society Services (LSSI) EN key clauses / ES (see Art. 22.2) carries the EU rules from the 'Cookie' Directive 2009/136/EC. Issues arise from the introduction of GDPR: when cookies identify individuals, then GDPR lawful processing rules may apply. The AEPD (Spanish Data Protection Agency) updated its Guide on the Use of Cookies (ES) June 2022 to adapt it to the Consent guidelines of the European Data Protection Board. Autocontrol’s cookie advice service in English is available hereLaw 34/2002 also regulates the E-Commerce context, implementing the Directive 2000/31/EC and Article 13 (unsolicited communications) of E-Privacy Directive 2002/58/EC. This imposes information requirements on ‘Information Society Service providers’ and addresses e-Marketing communications, establishing the opt-in principle. Details under Channel Section C, or see the linked files.

 

SPECIFIC CLAIM AREAS
Pricing

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors

 

National law in the form of Royal Decree 3423/2000 (EN key clauses; ES), transposes the Product Price Directive (PPD) 98/6/EC, establishing that the 'selling price' means the final price for a unit of the product or a specific/ given quantity of the product, including VAT and all other taxes. The Citroën/ZLW case here is important perspective on pricing. In amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for promotional pricing, applied in Spain by Law 7/1996 on Retail Trade ES / EN key clauses. Commission guidance for the application of the article is here. If advertising constitutes an ‘invitation to purchase’, Article 20 (1) RLD 1/2007 (EN art. 20) also requires a ‘full final price’. Law 3/1991 (EN key clauses) on Unfair Competition includes ‘promotional’ pricing references, such as ‘bait and switch’ advertising - see Article 22. Finally, Autocontrol’s General Code of Advertising Practice (EN) also includes price provisions in Articles 14 and 22; see our Content Section B for details of all of the above.

 

Environmental claims

 

From a Self-Regulatory perspective, the Code on the Use of Environmental Claims In Commercial Communications (2009) ES / EN applies to signatory companies from the Car and Energy sectors. See background note here. Autocontrol’s Code of Practice states that advertising must respect the environment (Art. 12). The general provisions and Chapter D Environmental Claims from the ICC Advertising and Marketing Communications Code will apply. Additional guidance on the use of environmental claims is in the ICC Framework for Responsible Environmental Marketing Communications (November 2021). From a statutory perspective, the use of environmental claims may be assessed against Law 3/1991 (EN key clauses 2022) on Unfair Competition; for help in this area, see section 4.1.1 Commission Guidance on application of the UCPD (December 2021). Again, details of all of the above are in our following Content Section B, or see the linked documents. 

The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7th October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here.

 

As the whole territory of environmental claims is high profile for well-documented reasons, we reference two late 2021 Self-Regulatory cases, one from the U.K. and one from Sweden. The UK case relates to Lipton Ice Tea: a complaint about a '100% recycled' claim was upheld despite the advertising including a qualification; an interesting commentary here from GALA/ Mondaq with reference to a similar case in the U.S. The Swedish case concerns a complaint against an Innocent Drinks 'greenwashing' claim ('fixing the planet'); the commercial has been withdrawn, but there's (not entirely objective) reference to it in this activist video.

 

 

 

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B. Content Rules

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some of the text is  'anchored' and linked to the respective headings immediately below

 

 

1. SELF-REGULATION

 

1.1. Autocontrol’s General Code of Advertising Practice

 

A. Basic principles

B. Authenticity

C. Principle of truthfulness 

D. Rules on certain advertising forms and techniques

E. Protection of Children and Adolescents

F.  Health protection

G. Advertising of credit institutions

Autocontrol Jury Decisions 

 

1.2. Confianza Online Ethical Code

 

2. LEGISLATION
 

2.1. General Advertising Law 34/1988

2.2. Law 3/1991 on Unfair Competition

2.3. RLD 1/2007 General Consumer & User Protection Act

2.4. Broadcast content rules from the General AV Law 13/2022

 

3. SPECIFIC CLAIM AREAS
 

3.1. Environmental claims

3.1.1. National Self-Regulation, including AC resolutions

3.1.2. International Self-Regulation

3.1.3. Horizontal legislation

3.1.4. EU guidance

3.1.5. Comparative claims

 

3.2. Pricing

3.2.1. Self-Regulation

3.2.2. Legislation

3.2.4. Case law

1. SELF-REGULATION

 

1.1. Autocontrol’s General Code of Advertising Practice EN / ES

 

I. Scope of application 

 

  • These ethical rules apply to all of advertising communication aimed at promoting, directly or indirectly and regardless of the means, format, or media used, the contracting of goods and services, or the enhancement of trademarks and trade names. These ethical rules will also be applicable to any advertisements commercial communications (sic) released on behalf of private individuals or legal persons, in order to promote certain attitudes or behaviours. These rules will not apply to political advertising

 

II. Ethical rules. A. Basic principles

 

  1. The Value of advertising: No commercial communication may be made in such a way that it negatively affects the social perception of advertising, undermines consumer confidence, or impairs its importance in ensuring the proper functioning of the market
  2. Respect for Law and the Constitution: Commercial communications shall respect legislation in force, and in particular the values, rights and principles enshrined in the Spanish Constitution
  3. Interpretation of advertising
  4. Good faith: Commercial communications must never constitute a means to abuse the good faith of the consumer
  5. Exploitation of fear: Commercial communications must not, without justification, provide reasons for purchasing which take advantage of fear, apprehension, misfortune, suffering or superstitions of those to whom it is addressed. Among other examples, advertisers may make use of fear, as long as it is proportionate to risk or adversity, in order to encourage prudent behaviour or to discourage dangerous, imprudent or unlawful actions
  6. Non-incitement to violence: Commercial communications shall not Incite or condone violence nor will they suggest advantages in violent attitudes or practices
  7. Non-incitement to unlawful behaviour: Commercial communications must not incite antisocial or unlawful behaviour, nor will it be tolerant of those aspects, nor will they suggest that there are advantages in antisocial or unlawful attitudes or behaviours
  8.  Respect good taste: commercial communications must not include any content which runs contrary to the prevailing standards of good taste and social decency, as well as against good customs
  9. Dangerous practices and safety: Commercial communications must not encourage dangerous practices except when made in a context in which it may be specifically deduced that it promotes personal safety or that of others. Advertising addressed to children should not contain any visual representation or description of potentially dangerous practices or situations that show a disregard for safety
  10. Discriminatory advertising: Commercial communications must avoid endorsing discrimination based upon race, nationality, religion, disability, age, gender or sexual orientation; neither must they prejudice a person’s dignity. In particular, advertising commercial communicationsthat can be degrading or discriminatory towards women must be avoided, including those which use the woman's body, or parts thereof, as a mere object detached from the product or service that is intended to be promoted, or associated with stereotypical behaviours that undermine equality between women and men
  11. Right to honour: advertising must necessarily respect the rights to honour, privacy and personal image
  12. Respect for the environment: commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour

 

 

B. Authenticity

  1. Commercial communications will be identifiable as such, regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labeled as such. That the real intent is advertising must be obvious. Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis
 

 

C. Principle of truthfulness 

 

  1. Misleading advertising

 

14.1. Commercial communications must not be misleading. Misleading advertising is understood as the one (sic.) that in any way deceives or is likely to deceive its recipients, and is liable to alter their economic behaviour, provided that it has an impact on one of the following elements:

 

  1. The existence or nature of the good or service
  2. The main characteristics of the good or service, such as its availability, benefits, risks, execution, composition, accessories, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product
  3. After-sale customer assistance and complaint handling
  4. The extent of the entrepreneur's or professional's commitments, the motives for the commercial practice and the nature of the commercial transaction or contract, as well as any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or professional or the goods or services
  5. The price or the manner in which the price is calculated, or the existence of a specific price advantage
  6. The need for a service, part, replacement or repair, and the change of the initially advertised price, unless there is a subsequent agreement between the parties agreeing to such change.
  7. The nature, attributes and rights of the entrepreneur or professional or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions
  8. The consumer’s rights or the risks he may face

 

14.2. Likewise, it will be regarded as misleading, the advertising which omits information necessary for the recipient to make or be able to make a prior informed decision on his economic behaviour, and for this reason can significantly distort their economic behaviour

14.3. For the purpose of applying the previous paragraph, all the characteristics and circumstances of the advertisement, as well as the limitations of the medium of communication used, must be taken into account. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the entrepreneur or professional to make the necessary information available to consumers by other means shall be taken into account, in deciding whether the information has been omitted

 

 

D. Rules on certain advertising forms and techniques

 

Guarantees/ delivery/ technical data/ comparative tests/ testimonials

 

  1. Guarantees: Commercial communications must not contain any reference to a guarantee that does not improve the legal position of the purchaser. Advertising may contain the words "guarantee" (“garantía"), "guaranteed" ("garantizado"), "certified" ("certificado") or words having the same meaning, provided that it does not deceive or is not likely to mislead the consumer regarding the scope of the guarantee
  2. Availability of products: Goods or services that cannot be supplied or provided shall not be offered, unless the advertisement indicates the moment or time-scale for the delivery or service
  3. Technical data:Where technical, scientific or statistical data are disseminated in advertising, they must be relevant and verifiable; they shall not give rise to error on the natural or legal persons, their nature and other circumstances that support them 
  4. Comparative tests: Publication of comparative tests on products or services must reveal the identity of the individuals and legal entities that have carried them out, as well as the date on which they were carried out. In the event of partial dissemination, this shall be done in an equitable manner
  5. Testimonials: When commercial communications include recommendations and/ or testimonials, that are assertions from parties not connected to the advertiser and who are not acting as spokespersons for the advertiser, whether they are paid or not, they must be truthful, both with regard to the person providing the recommendation/ testimonial, as well as to the content of the recommendation and/ or testimonial.The advertiser must have written authorisation of the testimonial and it is his responsibility to prove the veracity of the advertisement. Such advertising may only be used as long as the above conditions remain valid. The sponsored nature of a recommendation or testimony must be made clear by an appropriate warning in those cases in which the message, due to its formal characteristics or content, may mislead the user about the said nature

    See further note on testimonials here

 

Autocontrol jury decisions

 

To be updated

 

  • Jury judgment; decision of 24.05.2012 Glaxo vs. Colgate (Sensitive Pro Alivio) confirmed by the Full Session on 21 June 2012 ES Infringed Article 14 (Principle of Truth) and Article 21 (Denigration) and Article 3.1 Confianza Online Code for saying that the product was new, when it had been available on the market for almost 2 years
  • Jury Judgement; decision 29.05.2016 Glaxo & Henkel vs Colgate ES the expression ‘Colgate Total, the Dentist's Choice’ ('la elección del dentista'). From the viewpoint of the reasonably attentive and perceptive, normally informed, average consumer, the Jury understood the slogan to convey two distinct messages: that Colgate Total is the toothpaste most used by dentists and that dentists recommend the use of Colgate Total. Colgate under the Principle of Truth was obliged to prove the accuracy of the statements, which it could not

 

Comparative advertising 

 

  1. Exploitation of the reputation of others and Imitation:

 

  • Commercial communications shall not contain either explicitly or implicitly, any reference to the distinctive signs of another advertiser, other than in legal or conventionally permitted cases or in the case of acceptable comparative advertising (20.1)
  • Commercial communications must not imitate the general layout, text, slogan/ tagline, distinctive signs, visual presentation, music, or sound effects of other advertisements, whether national or foreign, even if the campaigns have come to an end, when any of these items are protected by industrial or intellectual property rights or the advertising leads to the likelihood of confusion in the minds of consumers, or entails taking unfair advantage of the effort or reputation of others (20.2)

 

  1. Denigration: Commercial communications must not discredit or denigrate, implicitly or explicitly, other companies, activities, products or services. Statements contained in the message that are accurate, true and relevant will not be considered as denigration. In particular, references to the personal circumstances of a businessman or his company will not be considered as 'relevant'
  2. Comparisons: Comparative advertising, direct or indirect, must respect the requirements listed below:

 

  1. The goods or services compared must have the same purpose or meet the same needs
  2. The comparison will be done objectively between one or more material, relevant, verifiable and representative features of those goods and services, which may include price
  3. In the case of products covered by a designation of origin or geographical indication, specific name or guaranteed traditional specialty, the comparison may be only made with other products of the same designation
  4. Goods or services shall not be presented as imitations or replicas of good of services bearing a protected trade mark or trade name
  5. The comparison must not contravene any rules established by Articles 14, 20 and 21 of the Code, related to acts of deception, denigration and confusion and exploitation of another's reputation

 

See also clause 18 above 

Other key clauses (see linked code

 

23. Proof of Advertising Claims

24. Aggressive Advertising 

25. Promotions

26. Common characteristics

27. Campaigns with a social cause

 

 

E. Protection of children and adolescents

 

28. Commercial communications addressed to children must be extremely careful. They must not exploit the naivety, immaturity, inexperience or natural gullibility of children or adolescents.  Commercial communications aimed at children or adolescents, or which are likely to influence them, must not contain statements or visual presentations which may harm them mentally, morally or  physically. Products that are illegal for children and / or adolescents or inappropriate or harmful to them should not be publicised in media directed to them. Commercial communications aimed at children and / or adolescents should not be included in media where editorial content is not suitable for them. Special care will be taken to ensure that advertisements do not mislead or deceive children as to the actual size, value, nature, lifespan or performance of the advertised product. If extra items (e.g. batteries) are required to use the product or to produce the results described or shown (e.g. paint) they must be explicitly pointed out. Commercial communications must not overestimate the degree of skill or the age limit of the children in order to enjoy or use the products

 

F.  Health protection

G. Advertising of credit institutions

 

1. 2. Confianza Online Ethical Code (COEC) 

 

2022 version in Spanish here 

Key provisions translated here 

 

Applicable to advertising, e-commerce, protection of minors, and personal data in the context of distance electronic communications

 

  • The new (2022) version of this important code has been significantly amended. The key changes for our purposes are related to a) the loss of a number of clauses that covered advertising content issues that in large part replicated the Autocontrol Code of Advertising Practice and b) Title IIII, Chapter III of COEC - Personal Data Protection - now incorporates and more closely reflects GDPR provisions. E-Commerce rules are also significantly amended
  • Unchanged for our purposes is the Definition of Advertising (EN) specifically. The latter can be important in the context of e.g. owned websites as it clarifies what does and doesn’t qualify as advertising in an owned environment and provides exemptions that may be pertinent
  • Reference point a) in the first bullet point above, Article 23 ‘Advertising’ represents the former clauses:

 

The advertising in electronic distance communications media of this Code’s affiliated entities must be in accordance with the applicable law and with the AUTOCONTROL Advertising Code of Conduct as well as being being decent, honest and truthful, according to the terms in which these principles have been articulated by the International Chamber of Commerce Code of Advertising Practice

 

2. LEGISLATION

 

While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation

 

Applicable in this context

 

  • Law 34/1988 of 11 November on General Advertising EN key clauses / ES (both inc. 2022 amends)
  • Law 3/1991 of 10th January on Unfair Competition EN key clauses / ES (both inc. 2022 amends)
  • Royal Legislative Decree 1/2007 General Consumer and User Protection Law (RLD 1/2007) ES / Art. 20 Invitation to Purchase EN
  • Law 13/2022 of July 7 on General Audiovisual Communication ES / EN key clauses 

 

 

2.1. General Advertising Law (34/1988)

 

The following is unlawful (key extracts, unofficial translation, 2022 amends in italics):

 

  • Advertising that violates the dignity of the person or any of the values and rights enshrined in the Constitution, particularly those referred to in Articles 14, 18 and 20 (4) of the Constitution EN / ES (Art. 3a) Note: these are rights to equality and non-discrimination, freedom of religion, right to honour, personal and family privacy and own image
  • Advertising which portrays women in a degrading or discriminatory manner, either by specifically and directly using their bodies or parts thereof as mere objects unrelated to the product being promoted, or their image associated with stereotyped behaviours (see note on case here) which violate the basis of the legal system while contributing to generate the sort of violence referred to in Organic Law 1/2004 of 28 December 2004 on comprehensive protection measures against gender-based violence 
  • Similarly, included in the previous provision is any form of advertising in any of its manifestations that contributes to encouraging violence against or discrimination towards minors, or promotes stereotypes of a sexist, racist, aesthetic or homophobic or transphobic nature, or because of disability, as well as that advertising which promotes prostitution
  • Advertising aimed at minors encouraging them to purchase a good or service by exploiting their inexperience or credulity or where they appear persuading parents or legal guardians to buy the advertised product/ service for them. Children may not be shown in dangerous situations without good reason. Advertising may not be misleading as to the characteristics of products or their safety nor to the ability and skills necessary for the child to use it without causing harm to itself or others (Art. 3b)  

 

2.2. Law 3/1991 on Unfair Competition ES / EN key clauses inc. 2022 amends

 

Law 3/1991 distinguishes between two types of unfair conduct: 

 

  1. ‘Acts of unfair competition’, which affect companies/ businesses as well as consumers, the latter in Articles 4, 5, 7 and 8, Chapter II
  2.  ‘Commercial practices with consumers and users’ in Chapter III, Articles 19-31. This section regulates acts of misleadingness/ deception towards consumers

 

 

A. Acts of unfair competition; key points from Chapter II

 

Misleading acts (Art. 5; unofficial translation, 2022 amend in italics)

 

  1. Any conduct containing false information or information that although true, by virtue of its content or presentation, leads or could lead its recipients to an error in judgement and is liable to alter their economic behaviour is considered misleading and hence unfair, provided that it has an impact on one of the following elements:

 

  1. The existence or nature of the goods or services
  2. The main characteristics of the good or service such as its availability, benefits, risks, execution, composition, accessories, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and essential features of tests or checks carried out on the good or service
  3. After-sales customer service and complaint handling
  4. The extent of the entrepreneur's or professional's undertakings, the motives for the commercial practice and the nature of the commercial transaction or contract and any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or professional or the good or service
  5. The price or the manner in which the price is calculated, or the existence of a specific price advantage
  6. The need for a service, part, replacement or repair
  7. The nature, attributes and rights of the entrepreneur or professional or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions
  8. The consumer’s statutory or contractual rights or the risks he/ she may face

 

  1. When the entrepreneur or professional indicates in a commercial practice that he is bound to a code of conduct, failure to adhere to the commitments assumed in that code is considered unfair, provided that the commitment is firm (not aspirational) and can be verified and, in its factual context, this conduct is likely to significantly distort the economic behaviour of its recipients
  2. Any marketing of a good as identical to another marketed in other Member States is also considered unfair, when said good has significantly different composition or characteristics, unless it is justified by legitimate and objective factors

 

Misleading omissions (Art. 7)

Considered unfair (Art. 7.1):

 

  1. The omission or concealment of information necessary for the recipient to make or be able to make a prior informed decision on his/ her economic behaviour is considered unfair. It is likewise unfair if the information provided is unclear, unintelligible, ambiguous, is not offered at the right time or the commercial purpose of that practice is not revealed when it is not evident from the context
  2. The factual context of acts, taking account of all of their characteristics and circumstances and the limitations of the media employed, shall be considered in determining the misleading nature of the acts referred to in the preceding paragraph
    In assessing the existence of an omission of information when the media used imposes space or time limitations, such limitations shall be taken into account along with all the steps taken by the entrepreneur or professional to convey the necessary information through other channels

 

Article 9: Acts of denigration

 

  • The creation or dissemination of statements about the activity, services, establishment or commercial relations of a third party that are designed to undermine or damage its credibility in the market is considered unfair, unless they are accurate, true and relevant. In particular, statements concerning the nationality, beliefs or ideology, private life or any other strictly personal circumstances of the person concerned, will not be deemed relevant

 

Article 10: Acts of comparison

 

Summary with relevant cases here

 

Public comparison, including comparative advertising by means of an explicit or implicit reference to a competitor, is allowed if the following requirements are met:

 

  1. The goods or services compared must have the same purpose or meet the same needs
  2. An objective comparison is made between one or more material, relevant, verifiable and representative features of the goods and services, which may include price
  3. In the case of products protected by a designation of origin or a geographical indication, specific designation or a certified traditional speciality, the comparison may only be made with products of the same designation
  4. Goods or services may not be presented as imitations or replicas of goods or services bearing a protected trade mark or trade name
  5. The comparison may not infringe the provisions of Articles 5, 7, 9, 12 or 20 regarding misleading and denigrating acts and exploitation of another’s reputation

 

Article 12: Exploitation of the reputation of others

 

  • The misappropriation, for one's own benefit or that of a third party, of the advantages of the industrial, commercial or professional reputation acquired by another party in the market, is deemed unfair
  • In particular, the use of distinguishing signs of others or false designations of origin together with the real product origin, or expressions such as 'models', 'system', 'type', 'class' and similar, is deemed unfair

 

B. Chapter III Commercial Practices with Consumers and Users: articles 21-27 concern misleading practices, articles 28-31 aggressive practices;

 

We have extracted and placed in the file below those articles from Law 3/1991 on Unfair Competition that are most relevant to marcoms: translation is unofficial and non-binding. Clauses include those transposed in 2022 from the Directive 2019/2161 relating to search rankings and consumer reviews:

http://www.g-regs.com/downloads/SPGenUnfCompExtracts2022EN.pdf

 

2.3.  Article 20: Royal Legislative Decree 1/2007 (RLD 1/2007) General Consumer and User Protection Act ES / EN key clauses unofficial translation

 

‘Invitation to purchase’

 

  1. Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase, must contain, if not already apparent from the context, at least the following information:
     

a) Name, registered name and full address of the entrepreneur responsible for the product offered and, where appropriate, the name, registered name and full address of the entrepreneur on whose behalf he acts

b) The essential characteristics of the good or service, in a manner appropriate to its nature and to the means of communication used

c) The full and final price, inclusive of taxes, providing a breakdown, where appropriate, of the amount of additions or discounts applicable to the transaction and any additional costs being passed onto the consumer or user. In other cases where, owing to the nature of the good or service, the price cannot be accurately determined in the commercial offer, the consumer and user must be informed of the basis of the calculation in order to allow them to check the price. Similarly, when the additional costs being passed on to the consumer or user cannot be calculated in advance on objective grounds, they must be informed of the existence of these additional costs, and if known, their estimated amount

d) Payment procedures, deadlines for delivery and performance of the contract and the complaint handling policy, where they depart from the requirements of professional diligence, as defined in Article 4.1 of the Unfair Competition Law

e) Where appropriate, the existence of a right of withdrawal

 

  1. For the purposes of complying with the provisions of the previous section and without prejudice to the sectoral regulations that may be applicable, the information required to be included in the commercial offer must be provided to consumers or users, mainly in the case of vulnerable consumers, in clear, understandable, truthful terms and in a format that ensures their accessibility, in such a way that secures their proper understanding and allows optimal decision-making for their interests
  2. Failure to comply with the provisions of the preceding paragraphs will be considered unfair practice on the grounds of being misleading in the same terms as those established in article 7 of Law 3/1991, of January 10, on Unfair Competition
  3. Commercial practices in which an entrepreneur enables access to consumer and user reviews of goods and services must contain information on whether or not the entrepreneur ensures that said published reviews have been made by consumers and users who have actually used or acquired the good or service. To this end, the entrepreneur must provide clear information to consumers and users about how reviews are managed
  4. The burden of proof of compliance with the information requirements established in this article will fall on the entrepreneur
  5. Failure to comply with the provisions of the preceding paragraphs will be considered an unfair practice as it is misleading in the sense of article 7 of Law 3/1991 of January 10 on Unfair Competition

 

2.4. Broadcast law; content rules

 

General Law on Audiovisual Communications 13/2022 of 7 July (ES; EN key clauses), which sets out the rules for advertising spots, product placement, teleshopping and sponsorship; covers TV and Radio, some forms of VOD and, most recently, video-sharing services. Includes rules on various sectors such as alcohol, medical products, rules related to children, surreptitious and subliminal advertising. Transposes the 2010/13 Directive and its amending directive 2018/1808

 

 

3. SPECIFIC CLAIM AREAS

 

3.1. Environmental claims

 

3.1.1. Self-Regulation (national)

 

  • Autocontrol’s General Code of Advertising Practice (EN)
  • Commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour (art. 13)
  • Sectoral Code, relevant mainly to cars: Self-Regulatory code on the use of environmental claims in commercial communications (2009) ES / EN 
  • The Ministry of Agriculture and Fisheries, Food and Environment MAPAMA, Autocontrol, and companies from the energy and automotive sectors established a Code of Good Practice that guides companies in the development, execution and dissemination of advertising messages that include environmental claims. The Code applies only to the signatory companies

 

 

Autocontrol resolutions

 

  • Resolution 16.02.2012 ES:  re illegible information in advertising for Hyundai iX35; breach of Article 3.3 General Code of Conduct: the FC&CO2 data in a TV commercial were displayed on a scroll/ overlay that appeared on the screen so briefly they were impossible to read
  • Resolution 03.12.2015 ES: Re cars 'parked' on the beach in a commercial for Volvo XC60. Contrary to Article 12, General Advertising Code The article Commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour and Article 33.5 of Law 22/1988 of 28 June on Coasts which establishes 'parking and unauthorised movement of cars is prohibited' on beaches and Article 72.1 of Royal Decree 876/2014 of 10 October which confirms that parking and movement of vehicles is prohibited on beaches

 

 

3.1.2. International Self-Regulation

 

 

 

 

3.1.3. Horizontal legislation:
The Unfair Commercial Practices Directive UCPD 2005/29/EC, transposed into Law 3/1991 on Unfair Competition

 

  • EU legislation in environmental marketing is confined to specific sectors such as energy-related and organic products; the UCPD applies to all claims made in B2C commercial practices, including those related to the environment
  • Environmental claims may be reviewed inter alia under Articles 6 Misleading actions, 7 Misleading omissions and 12 of the UCPD; in Spain in Law 3/1991 on Unfair Competition (EN key clauses) articles 5 and 7 respectively, and article 21 which reflects Annex I of the UCPD regarding trust marks; see also Commission Guidance below

 

 

3.1.4. Guidance

 

 

 

3.1.5. Comparative claims

 

Product comparisons involving environmental claims should be assessed under the criteria set out by the Directive on Misleading and Comparative Advertising (MACAD) Article 4 MACAD / Article10 Law 3/1991 sets out the criteria under which comparative advertising is allowed. Under these provisions, such a comparison should therefore, among other things (see Art. 4 2006/114/EC / Art. 10 Law 3/1991 on Unfair Competition):

 

  • Not be misleading, within the meaning of the UCPD
  • Compare goods or services meeting the same needs or intended for the same purpose (usually interpreted to mean that the comparison should refer to the same product category)
  • Objectively compare one or more material, relevant, verifiable and representative features of those goods and services

 

 

3.2. Pricing

 

 Stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of this website, does not constitute advice, just what the rules say

 

Applicable Self-Regulation and legislation 

 

Note:  the law under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC; in amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for reduced/ promotional pricing. These came into force in member states on May 28, 2022, in Spain via Royal Decree 24/2021 amending the Retail Trade law 7/1996 ES / EN key clauses. Commission guidance for the application of the article is here

 

  • Autocontrol’s General Code of Advertising Practice (EN) articles 14.1 (e) Misleading advertising and 22 (b) Comparative advertising
  • Royal Decree 3423/2000 on the Regulation of the Indication of Prices ES / EN key clauses inc. article 3 Indication of prices and exceptions
  • Royal Legislative Decree 1/2007 General Consumer and User Protection Act ES (2022). Key clause Article 20 EN 'Invitation to purchase'
  • Law 3/1991 on Unfair Competition EN key clauses / ES (both inc. 2022 amends) Articles 5/1/e, 7, 22
  • Law 7/1996 on Retail Trade EN key clauses / ES (Art. 20 for 2022 amend re discount price announcements) 

 

Case law: Court of Justice of the European Union (CJEU) C‑476/14 Citroën/ZLW Judgement and AG Opinion

 

 

3.2.1. Self-Regulation key clauses

 

  • Article 14.1 (e) AC General Code: Commercial communications must not be misleading. Misleading advertising is that which in any way deceives or is likely to deceive its recipients, and is liable to alter their economic behaviour, provided that it has an impact on one of the following elements: The price or the manner in which the price is calculated, or the existence of a specific price advantage (this clause selected for this context)
  • Article 22 (b) AC General Code: Direct or indirect comparative advertising shall respect the requirements listed below: The comparison will be done objectively between one or more material, relevant, verifiable and representative features of those goods and services, which may include price

 

 

3.2.2. Legislation key clauses

 

  • Royal Decree 3423/2000 ES implements Product Pricing Directive 98/6; key provisions in English, as outlined below EN
  • The selling price must be indicated for all products offered by traders to consumers (Art. 3.1)
  • Selling Price is the final price for a unit of the product or a specific/ given quantity of the product, including the Value Added Tax and all other taxes (Art. 2a)
  • The price per unit of measurement must be indicated:

 

  • For all products that need an indication of the quantity, the unit of measurement of which must be stated 
  • For products sold by units or pieces, using in such a case the price of one unit or piece as the unit price (Art. 3.2)

 

 

Features and presentation of prices (Art. 4)

 

  • The selling price and the unit price (price per unit of measurement) must be:

 

  • Unambiguous, easily identifiable and clearly legible, situated in the same visible area/ field of vision
  • Visible to the consumer without the need for the latter to request such information (Art. 4 (1a&b))

Discount pricing

 

  • The Retail Trade Law 7/1996 EN key clauses / ES (2022) carries many provisions related to pricing; the linked EN file includes only those more closely related to commercial communications and especially requirements from the Product Price Directive amended by Directive 2019/2161 to incorporate a new article 6a on promotional price announcements;  transposition is under article 20 of the Retail Trade Law:
  • 1. Whenever items with a reduced price are offered, the previous price together with the reduced price must be clearly shown on each one of them, except in the case of items offered for sale for the first time. The previous price shall be understood to be the lowest that would have been applied to identical products in the preceding thirty days. For these purposes, the price that could have been applied, in order to reduce food waste, on identical products whose expiration or preferential consumption (best before) dates were about to lapse will not be taken into consideration. 2. Under no circumstances may the use of sale promotion activities be subject to the condition of the existence of a minimum or maximum percentage reduction.

 

3.2.4. Case law

 

  • Key points from C‑476/14 Citroën/ ZLW case. Where an advertisement mentions the price of a product, the selling price must be stated; this means the final price including VAT and include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (para. 37). Other price components = integral parts of the final price (para. 23)
  • EU Commission also confirms, under Article 7 (4)(c) UCPD (In Spain Art. 20 RLD 1/2007), an entry-level price or starting price, i.e. indicating the price as 'from' a specific minimum amount, can only be permitted if the final price cannot ‘reasonably be calculated in advance’ due to the nature of the product (Case C-122/10 Konsumentombudsmannen/ Ving Sverige AB, Judgment of 12 May 2011, para. 64)

 

 

 

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C. Channel Rules

1. TV/Radio/VOD

SECTION C: TV & RADIO/ AV

 

 

APPLICABLE LEGISLATION

 

  • General Law on Audiovisual Communications 13/2022 of 7 July (ES; abbrev. GL. EN key clauses here), which sets out the rules for advertising spots, product placement, teleshopping and sponsorship; covers TV and Radio, some forms of VOD and, most recently, video-sharing services
  • Royal Decree 1624/2011 (EN key clauses; ES) complements the General Law 13/2022 above and develops some of its elements in relation to tele-promotion, self-promotion, product placement, sponsorship and marcoms during the broadcasting of sporting events (referred to as the Advertising Regulation in CNMC Documents below)
  • The government ‘s public consultation (ES) on the above, in light of the developments under Law 13/2022, closed September 23, 2022

 

STANDARD RULES 

 

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

 

PROHIBITIONS

 

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

RIGHTS OF THE MINOR

 

  • Children are protected by the restriction of some forms of advertising in some time periods. Rules are set out under the Children category available from the Home Page of this website, or see article 124 of the GL file linked above 

 

 ADVERTISING DURING A SPORTING EVENT

 

  • 'Publicidad' (Advertising) must be superimposed clearly and legibly throughout the duration of the advertising, where it takes the form of transparencies, virtual advertising, voiceovers, and split screen advertising (Art. 17.2 RD) This will also apply to such adverts inserted into replays shown during the transmission of the event; not applicable to replays shown after the event or during a break (Art. 17.3 RD)

 

PRODUCT PLACEMENT 

 

Article 129 General Law 13/2022 (ES; key clauses EN here) and Article 14 RD 1624/2011​

 

SPONSORSHIP

 

Article 128 General Law 13/2022 (linked above); articles 12/13 Royal Decree 1624/2011​

 

 

 

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2. Cinema/Press/Outdoor

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

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

 

Special rules

 

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

 

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

 

Advertising of alcoholic beverages (Art. 7)

 

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

 

 

PRINT
Press, Magazines & Promotional Literature, e.g. Leaflets, Brochures, Catalogues etc.

 

Content rules in Section B will apply to Print advertising, except those rules specific to Broadcast media. The principal set of rules is from Autocontrol’s General Code of Advertising Practice (EN)

 

OUTDOOR

 

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

In the context of roadside static advertising:
 

  • Under Highways Law 37/2015 (EN); advertising is only permitted on urban sections/ stretches of road, as classified by the Ministry of Public Works and Transport (See Preamble and Art. 11(2G) Law 37/2015)
  • Article 37 of the Highways Law includes advertising provisions:
     
  • Outside of urban stretches of road it is prohibited to advertise in any place that would be visible from the road and in general any advert that could possibly capture the attention of the driver on the road, so outdoor advertising visible from motorways and highways is prohibited (Art. 37.1)
  • This applies to all signs, posters, markings, shapes, logos and images, whatever their type, size (Art. 37.2)

 

 

Autonomous regional legislation

 

 

 

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

 

 

 

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3. Online Commercial Communications

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important. Autocontrol define as 'that which is aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘

 

In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant articles from law are referenced. The impact of GDPR is shown where possible/ relevant under individual channel sections that follow. Privacy issues should be reviewed with specialist advisors

 

KEY RULES

 

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

 

APPLICABLE LEGISLATION 

 

Non-exhaustive

 

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

 

SELF-REGULATION 

 

  • Autocontrol’s Code of Advertising Practice (EN); applicable to all media 
  • Confianza Online Ethical Code (COEC) is specific to electronic distance communications media EN key clauses / ES (both 2022)
  • The Autocontrol Influencer Code of Conduct 2020 ES / EN defines when Influencer advertising qualifies as such and sets out identification requirements
  • Autocontrol have also published the Code of Conduct for Data Processing in Advertising Activities (EN), operational from 1 January 2021

 

INTERNATIONAL/ GUIDELINES 

 

 

E-commerce information requirements (from legislation)

 

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

 

 

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

4. Cookies & OBA

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

Google says cookie here to stay until 2024
July 27, 2022

 

This section deals with cookies in the context of advertising delivery, taking in OBA. We don’t address ‘cookie statements’ specifically, though some guidance documents, which may contain references, are linked. In the context of GDPR 2016/679; when cookies (can) identify individuals, then GDPR lawful processing rules apply. Privacy issues should be reviewed with specialist advisors 

 

Applicable legislation 

 

  • COOKIES: Law 34/2002, regarding Information Society Services and electronic commerce known as LSSI or LSSICE. Title III Electronic Commercial Communications, Article 22.2 EN / ES
  • DATA PROCESSING: see GDPR reference above. The national act that sits ‘alongside’ GDPR is the Law on Data Protection and Digital Rights (ES) of 5 December 2018
 
Guidance

 

 

Self-Regulation

 

  • DATA PROCESSING: The Confianza Online Ethical Code (2022; ES) Data Protection section reflects GDPR. An official translation from Autocontrol is in hand. Meanwhile, unofficial translation of the key articles here
  • DATA PROTECTION: Autocontrol incorporate data protection measures in their Code of Advertising Practice. These have been extracted from the Code and are shown here (EN)
  • The Autocontrol  Code of Conduct for Data Processing in Advertising Activities (EN), in force from January 2021, provides rules (approved by the DPA and under the GDPR umbrella) on data processing in the context of advertising
  • COOKIES: Confianza Online Ethical Code. Article 27 of the 2022 version linked above:

 

Use of cookies and and similar devices 

 

  1. The use of cookies (including other similar devices) by the affiliated entities will be subject to the provisions of the Law on Information Society Services or the regulations that replace it
  2. For the use of cookies not excepted from obtaining informed consent in accordance with the regulations, the affiliated entities must obtain said informed consent in accordance with the provisions of the GDPR. In particular, the affiliated entities will take into account the following: 
 
 
  1. When describing the purpose of the cookies, ambiguous descriptions will be avoided
  2. The consent must in any event be express and, in the cases required by data protection regulations, explicit (therefore, in no circumstances will consent obtained under the ‘continue browsing’ formula be valid)
  3. If third-party cookies are used, the data subject will be informed of this
 
 
  1. For illustrative purposes and for a better understanding given its complex nature, Confianza Online recommends that the affiliated entities follow the guidelines set by the Spanish Agency for Data Protection in their current version or later, as well as the use of the examples published in the Guide on the use of cookies.
    https://www.aepd.es/es/documento/guia-cookies.pdf

 

OBA/ THIRD PARTY COOKIES 

 

EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024

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

Effective 19 January 2022

 

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

 

‘It is not necessary to provide links to third party websites where the purposes of such cookies are clearly shown. If the editor/ website owner cannot provide a sufficient explanation on the purposes of cookies used by third parties, or if it is deemed relevant, the editor must include a link to the third party website in which there is an explanation on cookies used and their purpose. The editor/ publisher must ensure that the links open out onto pages that exist which are not in English, but Spanish or co-official language used on the website. In addition, the editor must make sure that the links are not obsolete or broken, and therefore they are not directing users to out-of-date versions of the documents

 

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

 

GDPR AND PROFILING

 

 

International Self-Regulation

 

  • EASA’s Best Practice Recommendation on OBA includes (section 4.4) principles that form the basis of a European-wide industry Self-Regulatory standard for increased consumer transparency and choice regarding Online Behavioural Advertising. They are drawn from the Principles and Definitions contained within the OBA Framework of IAB Europe, also included in Section 5.3 EASA BPR. This Standard is Self-Regulatory in nature and is intended to apply to all Third Parties involved in OBA.
  • ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: includes explanation of the global framework available for OBA Self-Regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles, and links to further resources

 

 

A good number of companies and organisations in Europe are engaged in the European Self-Regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link on the icon to the OBA Consumer Choice Platform http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling

 

Application in Spain 

 

Autocontrol has extended its remit to cover OBA and translated the EASA BPR into Spanish, a copy of which text is available on their website here. The Advertising Jury is responsible for applying the EASA BPR and/ or the IAB Framework, handling complaints regarding any alleged breaches. A tailored OBA complaint mechanism is on the ‘Reclama Online’ section of the Autocontrol website

 

 

 

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5. Emails & SMS

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

STANDARD RULES 

 

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

 

The advertising in electronic distance communications media of this Code’s affiliated entities must be in accordance with the applicable law and with the AUTOCONTROL Advertising Code of Conduct as well as being being decent, honest and truthful, according to the terms in which these principles have been articulated by the International Chamber of Commerce Code of Advertising Practice

 

1. APPLICABLE LEGISLATION

 

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

 

2. APPLICABLE SELF-REGULATION 

 

 

DATA PROTECTION: EDPB GUIDANCE

 

 

1.1. E-COMMERCE / INFORMATION SOCIETY SERVICE

 

(Art. 20 LSSI) Key clauses 

 

Note that in setting out the rules below, we show primarily, and lead with, the LSSI versions, unless otherwise indicated

 

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

1.2. CONSENT AND OPT-OUT 

 

Key clauses

 

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

1.3 PERSONAL DATA; B2C solely

 

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

 

1.4. HARASSMENT

 

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

 

2.1. THE CONFIANZA ONLINE ETHICAL CODE  (COEC)

 

  • COEC’s latest version was published February 2022 ES. Key provisions unofficially translated hereThis is a significant development versus the 2015 and 2021 codes, extracting much of the former Title II ‘Advertising’ including articles 3 to 13, which covered advertising sent via email messages. Advertising content requirements now refer to the applicable statutory requirements and Autocontrol's Code of Practice.
  • Commercial communications via email are required to observe the data protection and e-commerce provisions (when applicable) set out under legislation referenced above and in the COEC code itself which, per above, has been amended to reflect lawful processing rules under GDPR. e-Commerce provisions are similarly overhauled under Title III, Chapter I

 

 

  • The ICC Code is indirectly applicable in Spain; it is referenced in COEC as required to be observed Reference Art. 3 General Principles COEC Advertising in electronic distance communications media must be honest and true and comply with the applicable law according to the terms in which these principles have been articulated in the Autocontrol Code of Conduct for Advertising and the Code of Practice for Advertising of the International Chamber of Commerce
  • Article 19  under General Provisions of the ICC Code  includes provisions for Data Protection and Privacy; Chapter C of the Code covers Direct Marketing and Digital Marketing Communications and 'applies to all participants in the direct marketing and digital marketing eco-system and their marketing communications activities'; see the linked Code above for full information

 

 

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6. Own Websites & SNS

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in Paid space also applies in Owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. The Autocontrol definition is ‘all advertising communication aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below and article 4p of the Confianza Online Code (COEC), 2022 version unofficially translated here.

 

Issues may arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

 

STANDARD RULES 

 

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

 

APPLICABLE LEGISLATION AND SELF-REGULATION 

 

Legislation/ guidance 

 

  • DATA PROCESSING: Per the reference in the introduction above, website owners processing data that may be defined as personal data should be aware that lawful processing rules from the GDPR may apply; In the case of Spain, the Regulation is ‘recognised’ by the new Data Protection Act (ES), whose purpose is to ‘adapt the Spanish legal system to Regulation (EU) 2016/679.’ Former national data protection laws are repealed 
  • The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
  • And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR
  • E-COMMERCE: Law 34/2002 (LSSI) regulates commercial communications in E-commerce, implementing the E-Commerce Directive 2000/31/EC and Article 13 (unsolicited communications) of E-Privacy Directive 2002/58/EC. This imposes information requirements on ‘information society service providers’ and addresses e-marketing communications, establishing the opt-in principle. Details are in the preceding section, Emails and SMS
  • COOKIES: The same Law 34/2002 carries the ‘Cookie Directive’ rules; see our earlier Cookies and OBA section for further information, though this is a complex area in Spain especially, and best reviewed with advisors
  • CONSUMER PROTECTION: The following laws also regulate online communications as they regulate all forms of communication. Provisions are spelt out in our Content Section B; the links are here just in case:

 

 

Self-Regulation

 

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

 

Title III. e-Commerce/ DP

 

  • Activities of contracting goods or services with consumers performed through electronic distance communications media must comply with current legislation and, in particular, the values, rights, and principles recognised in the Constitution (Clause 14. Principle of legality)
  • The most relevant article from COEC Title III e-Commerce is 15, Obligations prior to initiation of contracting procedure, essentially reflecting requirements from legislation. That clause can be found in the file linked above or here. Many of the other articles relate to distance selling and contractual information requirements, warranties etc. and do not directly or indirectly address commercial communications
  • The 2022 version of COEC makes several amendments to the former 2021 version, most significantly to reflect GDPR closely. Data Protection clauses are under COEC articles 24-26 and show several helpful 'working examples'

 

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 EASA Best Practice Recommendation Digital Marketing Communications

 

 

 

 

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7. Native Advertising

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. The key issue, obviously, is that of advertising identification. If it’s advertising, defined in Spanish law as ‘Any form of communication made by natural, legal, public or private person in the exercise of its commercial, business, craft or professional activities that aims at direct or indirect promotion of moveable or immoveable goods, services, rights or obligations' (Art. 2 Law 34/1988), then like any other advertising, it’s subject to the rules set out in our Content Section B

 

LEGISLATION

 

  • General Advertising Law (34/1988) Article 2 Definition of advertising EN key clauses inc 2022 amends

  • Unfair Competition Act (3/1991) Article 26 Covert Commercial Practices EN key clauses inc 2022 amends

  • Law 34/2002 on ISS and Electronic Commerce (LSSICE) Article 20.1 Identification of electronic commercial communications EN key clauses / ES

 

GUIDANCE

 

 

SELF-REGULATION 

 

 

LEGISLATION KEY CLAUSES 

 

  • Under Article 26 Covert Commercial Practices of the Unfair Competition Act (Law 3/1991) payment to include promotional communications of goods or services as information in the media without clearly specifying in the content or by means of images and sounds clearly indicating to consumers or users that this is an advertisement, shall be considered misleading and hence an unfair commercial practice.

  • Commercial communications sent by electronic means shall be clearly identifiable as such and the entity or person on behalf of which they are made must also be clearly identifiable (Art. 20.1 LSSICE; Law 34/2002 on Information Society Services and Electronic Commerce)

  • As a result, the average consumer or user must be able to easily identify advertising content and distinguish it from other content. IAB Spain Guide in S. 4.6 confirms terms used to identify native advertising – which vary according to the context: “contenido presentado por – content presented by”; “contenido destacado – featured content”; contenido patrocinado – sponsored content”; or before an advertising message placing the word “publicidad” (advertising) or “publi”. Simply referencing the name of the brand without anything else is not recommended

 

SELF-REGULATION KEY CLAUSES

 

  • Commercial communications will be identifiable as such regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labeled as such. That the real intent is advertising must be obvious. Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis (Autocontrol’s General Code of Advertising Practice: B. Authenticity, point 13)

 

 

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8. Telemarketing

 

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

SECTION C: DIRECT POSTAL MAIL

 

 

STANDARD RULES 

 

  • Rules set out in our earlier Content Section B apply to Direct Mail, except those rules that identify either broadcast or digital channels. The principal source of content rules is the Autocontrol Code of Advertising Practice (EN)
  • Direct Postal Mail in most countries, Spain included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications; Robinson lists or equivalent must be reviewed before distribution

 

LEGISLATION 

 

  • MAIL LEGISLATION: Article 13 (D) of Royal Decree 1829/1999 (ES) on DM commercial communications
  • DATA PROCESSING: Lawful processing rules from the GDPR may be applicable. Privacy issues should be reviewed with specialist advisors. The Data Protection Act 15/1999, now repealed, permitted the obtaining and deployment of publicly available data, provided that the data subject did not object to processing and that information requirements were fulfilled (Art 45 (1a) RLOPD; Art 30 (1) LOPD). It is not entirely clear whether this exemption continues to apply in light of the GDPR. The AEPD, Spain’s data protection authority, address the issue in a FAQ here (ES)
  • CONSUMER PROTECTION: RLD1/2007 (EN key clauses inc. 2022 amends; ES) General Consumer and User Protection Act provides for opt-out and requires clear identification of commercial content; see article 96 Distance Commercial Communications, only available in full ES version, some clauses below; article 20 carries information requirements for an ‘invitation to purchase’ (often part of DPM) and can be seen in the EN link 

 

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Autocontrol’s Code of Conduct for Data Processing in Advertising Activities (EN) was operational from 1 January 2021

 

 

Key clauses from RD 1829/1999

 

Direct marketing for the promotion and sale of goods and services:

 

  • Must be formed of a communication consisting solely of advertising, market research or publicity/ promotions
  • Must contain a similar message, although the name, address and any specific ID numbers assigned to their addressees/ recipients, must be different in each case (i.e. they must be addressed)
  • Must be sent to more than 500 addressees/ recipients
  • Must be sent in an open envelope to allow postal inspection/ mail screening
  • The letters “P.D.” (Publicidad Directa) must be marked on its cover in order to allow such mail to be identified as advertising

 

 

Key clauses from RLD 1/2007 Consumer and User Protection Act, and Law 3/1991 on Unfair Competition

 

  • Identification: The commercial nature of all distance commercial communications must be clearly stated in these communications (Art. 96.1 RLD 1/2007); Art. 92.1 (2nd Para) identifies postal mail as a form of distance commercial communication

 

 

Law 3/1991 on Unfair Competition; Article 29.2:

 

  • Aggressive practices using harassment will be deemed an unfair commercial practice in all cases and under all circumstances Making unsolicited and repeated proposals/ offers by means of distance communications except in circumstances and to the extent legally justified to comply with a contractual obligation, shall be deemed unfair
  • In these communications, the business must use systems that enable the consumer to register their opposition/ objection to receiving commercial proposals/ offers from the business in question
  • This is without prejudice to what is established in current regulations on personal data protection, information society services, telecommunications and distance contracting with consumers or users, including the distance contracting of financial services
 
‘Invitation to purchase’

 

  • As Direct Mail will frequently include offers, advertisers should be aware of requirements regarding an ‘Invitation to Purchase’, defined here as “Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase.” These are found in article 20 of the General Consumer and User Protection Act linked above

 

B2B

 

B2B marketing activities sent by postal mail: we cannot establish any prohibition of B2B postal mail  

 

 

 

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10. Event Sponsorship/ Field Marketing

SECTION C: EVENTS/ SPONSORSHIP

 

 

 
Article 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
 
Article 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
 
Article 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
 
Article 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
 
Article 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
 
Article 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

 

Article B7.  Data capture/data sharing
 
  • If personal data is used in connection with sponsorship, the provisions of article 19 are applicable

 

Article B8 . Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects

  • Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them

 

Article B9 . Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship

  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)

  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications

 

Article B10 . Charities and humanitarian sponsorship

 

  • Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected

 

Article B11.  Multiple sponsorship

 

  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors

  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship

  • The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors

 

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

 

Article B13 . Responsibility

 

  • As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content

  • Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship

 

 

 

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11. Sales Promotion

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. In the case of Spain, however, we have included extensive provisions from the Retail Trade Act, as well as national Self-Regulatory codes and Consumer Protection legislation around pricing, for example. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal. As promotional advertising/ communications might be more ‘aggressive’, we include the measures from legislation and Self-Regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be reviewed by specialist advisors

 

 

1. APPLICABLE RULES 

 

1.1. Legislation

1.2. Self-Regulation in Promotions

1.3. Guidance

 

2. PROMOTIONAL FORMS 

 

2.1. Promotion of sales with free gifts

2.2. Information Requirements

2.3. Promotion of sales with a free gift or bonus/ premium

2.4. Online advertising of promotional offers and games/ competitions

2.5. Skill-based and Prize Draws

2.6. Free-prize draws/ sweepstakes

2.7.  Paid-entry sweepstakes, games and raffles

2.8. Competitions and contests

2.9. Other requirements

 

3. HORIZONTAL LEGISLATION 

 

3.1. Misleading Advertising by omission of material information

3.2.  ‘Bait’ advertising and misleading promotional practices

 

4. LEGAL BASES (rules of the promotion)

 

5. SOCIAL NETWORKS 

 

6. SELF-REGULATION IN PROMOTIONS 

 

6.1. Autocontrol Code of Advertising Practice

6.2. ICC Advertising and Marketing Communications Code 

 

 

 

 

1. APPLICABLE RULES  

 

1.1. Legislation

 

  • RETAIL: Law 7/1996 on Retail Trade EN key clauses / ES. Articles 18,19, and 32 promotion of sales with accompanying gift
  • GAMBLING: Law 13/2011 on the Regulation of Gambling (Gambling Act) EN / ES  (Art. 47 (7) (12)
  • E-COMMERCE: Law 34/2002 on Information Society Services. Information requirements for online commercial communications, promotional offers. Article 20) EN key clauses / ES
  • CONSUMER PROTECTION: Articles 20, 60, 61 RLD 1/2007 General Consumer and User Protection Act ES / EN key clauses inc. 2022 amends
  • Articles 22 (4 and 6) Law 3/1991 on Unfair Competition, unfairness due to misleadingness EN key clauses / ES both files inc. 2022 amends

 

 

1.2. Self-Regulation in promotions

 

 
 

1.3. Guidance

 

  • The Spanish Marketing Association, with the law firm Riestra Abogados and Mando, produce a guide ‘Advertising Promotions: mechanics, efficiency and security’ aimed at marketing departments and advertising agencies. In Spanish here
  • Resolution of 8th July, from Secretary of State for Telecommunications and the Information by which a Code of Conduct on the provision of premium rate services based on the sending of mobile telephone messages (or premium SMS) is published ES (Relevant: 6.3.6); key articles in English here

 

 
2. PROMOTIONAL FORMS 

 

2.1. Promotion of sales with free gifts; from the Retail Trade Act (EN key clauses)

 

The promotion of sales with a free gift is legal and subject to rules contained in Retail Act 7/1996. Article 32 specifically regulates these types of sales. The Act relates primarily to retail-based promotional rules (i.e. discount, stock clearance and liquidation sales); sales with gifts/ premiums is the most relevant category in this context

  • ‘Sales with free gifts’ activity is considered a sales promotion activity under the Retail Act (Art. 18.1)
  • Other sales promotion activities for which there are specific rules include discount sales, sale offers/ sales promotions, stock clearance sales, liquidation sales, and direct sales offers
  • The promotion of sales with free gifts must comply with the corresponding rules established for this type of sales promotion activity  in Chapter VI, particularly Article 32 (notion/ concept) shown below (Art. 18.2)
  • Failure to comply with Chapter VI and Article 32 will lead the activity to be considered unfair when the conditions in Article 5 (Misleading Act) of Law 3/1991 on Unfair Competition are met (Art. 18.3)

 

2.2. Information Requirements

 

  • The promotion of sales with a free gift must specify the duration of the sales promotion and any specific terms or conditions applicable to it. (Art. 19.1) Note: In case the promotion has not started yet, also the start date. Moreover, case law and the advertising Jury have stated that the amount of stock available for the promotion is disclosed (this note added by the SRO Autocontrol)
  • The offer of products with a prize or gift will be deemed misleading when the consumer does not actually or effectively receive what he/ she would have reasonably expected in view of the offer made (Art. 19.3)

 

2.3. Promotion of sales with a free gift or bonus/ premium; Article 32 of the Retail Act

 

  • Sales (promotions) with free gifts are those in which the purpose or aim is to promote sales, by offering buyers a prize, whatever its nature, either automatically or by participation in a draw/ lottery or contest
  • Sales with a bonus/ premium are those that offer any incentive or advantage related to the acquisition of a good or service
  • When the incentive or gift consists of entry into a draw, the provisions of the Retail Law must be observed, without dismissing the terms of existing sectoral legislation (i.e. the Gambling Act 13/2011. Where entry is free, the Gambling Act will not apply and authorisation will not be required)
  • Sales with a free gift or bonus/ premium are deemed unfair under the circumstances provided by Act 3/1991 on Unfair Competition; see Articles 22.4 and 22.6
  • Delivery of free gift: Irrespective of any autonomous legislation the gift must always be provided within three months of the moment when the consumer fulfils the condition of the promotion (note: usually the purchase). Any gift that has been offered on the packaging of the product must also be available for at least three months from the end of the promotion (Art. 33)

                                                                      

Note: Specific regulations apply to particular types of goods. For example, it is prohibited to offer any kind of promotional gifts in the medicinal and pharmaceutical sectors (Art. 78.5 Act 29/2006 on Guarantees and Rational Use of Medicines and Healthcare Products)

 

2.4. Online advertising of promotional offers and games/ competitions; from LSSICE (EN)

 

Article 20 LSSICE: Information Requirements:

 

  • Applicable to Information Society Service Definition See Annex LSSICE (a)  Information Society Services or “Services” means any service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipientapplicable to the sending of commercial communication providers established in Spain (Arts. 1 & 2) 
  • The communication must be clearly identifiable as such and the natural or legal person on behalf of whom they are made must also be clearly identifiable (Art. 20.1)
  • Promotional offers (discounts, premiums and gifts), in addition to promotional competitions or games must be clearly identifiable as such, and the conditions which are to be met to qualify for them (in the case of offers) or participate in them (competitions/ promotional games) must be easily accessible and must be expressed in a clear and unambiguous manner (Art. 20.2)
  • In the case of emails containing promotional offers, such as discounts, premiums and gifts, and promotional competitions or games, the necessary prior consent must be obtained, i.e. opt-in consent, see Art. 21.1 LSSI (Art. 20.2)

 

See Article 22 LSSICE for consent requirements for sending of commercial communications by email and SMS

 

2.5. Skill-based and prize draws

 

The Regulations make a distinction between skill-based contests/ competition and random combinations aka sweepstakes/ prize draws, whether paid or free entry

The Gambling Act 13/2011 EN DGOJ the Spanish Gambling Authority, version / ES regulates gambling activities carried out via electronic, computer, telematic or interactive Definition Covers television, the Internet, mobile and landline telephones or any other, or interactive communication, whether it is in real or delayed time (art. 3h) means where ‘in-person channels are rendered accessory’ (Art. 1) i.e. so this law is applicable to contests and draws carried out via/ on the Internet and social networks

 

2.6. Free-prize draws/ sweepstakes; helpful info from DGOJ here

 

  • Sweepstakes/ Prize Draws for advertising or promotional purposes: these are aimed exclusively at advertising or promoting a product or service, whose sole consideration is the consumption of said product or service, without surcharge or tariff, which offer cash, in-kind or service prizes and, in certain cases, require registering as a client of the entity being advertised or promoted (Art. 3 (i) Gambling Act). Often used to build a database 
  • Sweepstakes for advertising and promotional purposes are excluded from the scope of application of the Gambling Act, with the exception of Gambling Tax requirements; see Title VII Tax System Gambling Act) (Art. 2 (2c) GA)
  • Therefore, they do not require a licence or authorisation, nor any prior notice to the Spanish Gambling Authority, provided the prize draw has national scope (Under Article 2 (1) Gambling Act, the Act only applies to activities carried out on a national level). In which case, they will be subject to the general regulations of commercial and civil law. However it is recommended that the organiser files the rules with a notary
  • In the case of promotions with regional scope, meaning those promotions only addressed to residents in one Spanish region, regional regulations will apply and in some cases, prior communication to the corresponding regional authorities is required

 

2.7.  Paid-entry sweepstakes, games and raffles

 

In order for the Gambling Act (EN) to apply, the activity, i.e. Occasional Contest/ Game or Raffle, in line with the definition on Gambling, must involve the risking of money or other objects of measurable value on future, uncertain results which to some extent depend on chance, regardless of whether the player's skills determine the outcome or not, in order to obtain a prize. (See Art. 3a and Art. 2 (1a) GA).

 

The procedure for obtaining authorisation and other requirements vary depending on the type of gambling activity

 

  • Most relevant: Occasional Gambling Activities (Art. 2 (1c) GA); applicable where an outside company might want to offer a contest or draw to residents of the Spanish state
  • All gambling activities listed in Law 13/2011 which are occasional require prior authorisation issued by the DGOJ; most applicable types of gambling activities in respect of sales promotions will be Contests and Raffles, where money is a requirement of playing (see Art. 12 Gambling Act EN)
  • Occasional or sporadic gambling activities are defined as those which are not conducted periodically or permanently or, if conducted periodically, once a year or less frequently. Occasional or sporadic gambling is not part of the ordinary activity of the organising entity
 

 

Further information 

 

  • Article 7 Advertising, sponsorship and promotion of gaming activities, Gambling Act will apply
  • Information in English from Gambling Authority on Occasional Raffles here and Occasional Gambling Activities here 
  • Take into account Article 9 Ministerial Order regulating Contests; applies to permanent, not occasional contests, but still a useful guide EN

 

 

2.8. Competitions and contests

 

  • The essential requirements of a competition or contest is that it must be 100 per cent skill-based. The winner is chosen only on the basis of skill, not chance
  • The determination of the winner must be carried out according to the criteria established in the terms and conditions and without the influence of chance
  • The winner must be selected by a qualified judge or panel of judges 

 

 

2.9. Other requirements

 

  • Filing the rules/ terms and conditions with a notary prior to the start date is strongly advised, although not required by law
  • Language: Terms of the competition be drafted at least in the Spanish language. Article 18 (3) RLD 1/2007 Consumer Protection Law
  • In regional promotions, regional language translations may also be mandatory, or strongly recommended

 

3. HORIZONTAL LEGISLATION 

 

3.1. Misleading advertising by omission of material information

 

Omission of key information can be considered misleading advertising and hence an unfair act of competition under Article 7, Law 3/1991 (EN key clauses inc. 2022 amends). As promotional communications are particularly sensitive in this respect, we are showing some ‘horizontal’ legislation as well as promotional-specific clauses below

 

  • Where a sales promotion constitutes an invitation to purchase; Article 20 RLD 1/2007 (EN) on Consumer and User Protection: commercial practices which, in a manner appropriate to the means of communication employed, include information on the characteristics of goods or services and their price, enabling consumers or users to make a decision regarding purchase, must contain at least the following information, unless it is already clear from the context:
  • Article 20(1c): The full final price, including taxes, providing a breakdown, where appropriate, of the amount of any additions or discounts applicable to the transaction and any additional costs that are passed on to the consumer or user. In other cases in which the price of product offered cannot be agreed upon exactly due to the nature of the goods or services, information shall be given as to the basis for calculation, which will allow the consumer or user to check the price. Likewise, when the additional expenses that are passed on to the consumer or user cannot be calculated in advance for objective reasons, information shall be provided to the effect that there are additional expenses, along with an estimated amount in this regard, if known.
 

3.2.  ‘Bait’ advertising and misleading promotional practices, under article 22 Law 3/1991 (EN key clauses) on Unfair Competition

 

The following shall be considered misleading and hence unfair:

 

  • Commercial practices whereby a prize is offered, automatically or through a competition or draw but the prizes described or others of equivalent quality and value are not awarded (Art. 22.4)
  • Creating the false impression, including by means of aggressive practices, that the consumer or user has won, will win or will be awarded a prize or any other similar advantage if he carries out some specific act when the truth is that (Art. 22.6):
  • There is no prize or similar advantage
  • Or the action that the consumer or user is invited to take in order to obtain the prize or similar advantage is subject to an obligation to make some payment or incur some expense

 

 
4. LEGAL BASES 

 

 

It is recommended that the organiser of a sales promotion in the form of a contest or draw always include legal bases which are accessible and available to users at all times, e.g. published on website. And on the registration form of promotion it is advisable to include the clause: The application to participate in this contest/ draw implies full acceptance of the legal bases that are published at the following web address: http://www.paginaweb.com/baseslegales/ 

Although not required by law, it is also advisable to place these bases with a notary; this allows for greater transparency and avoids any doubt over rigging the draw. The bases are here (EN)

 

 

 

5. SOCIAL NETWORKS 

 

 

When organising a draw/ contest on a social network it is important to consult its own rules, which might otherwise result in the blocking of accounts/ profiles. For example, Facebook and Twitter have specific conditions:

  • Facebook promotion rules here
  • Twitter promotion rules here

 

 

 

6. SELF-REGULATION IN PROMOTIONS 

 

6.1. Autocontrol Code of Advertising Practice

 

  • Clause 25, Promotions: Promotional advertising, such as contests or similar activities must clearly indicate the conditions for participation and their duration. Under no circumstances must the pre-conditions for winning the prize, nor the costs associated with receiving it or taking part in the promotion be masked

 

 

6.2. The ICC Advertising and Marketing Communications Code, which underpins much of Self-Regulation worldwide, carries a full Chapter (A) on Sales Promotions

 

 

 

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D. Advice & Clearance

SECTION D

 

JANUARY 2021

 

 

With the start of the new year, AUTOCONTROL has updated its service offering (ES) and, among others, has launched two new consulting services:

 

la Consultoría orientativa de protección de datos,

Data protection consultancy and

la Consultoría sobre campañas de publicidad o web

Consultancy on ad campaigns or the web

 

The latter provides formal advice on a more general basis than the analysis of specific proposals under Copy Advice®, covering application of the rules, regulation of the category or service, etc. of future advertising campaigns, including web pages or assessing those on the same basis separately. 

 

Additionally, after the entry into force of the Data Processing Code January 1, AUTOCONTROL has a new sistema de reclamaciones de reclamaciones de protección de datos y publicidad  (we think that’s a system for complaints about claims related to data protection and advertising)  which Confianza Online members can access for free

 

 

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

 

 

There are 3 key instruments in Autocontrol, as with most advertising SROs:

 

  1. Code of conduct: the Autocontrol Code of Advertising Practice (EN) 
  2. Out-of-court dispute settlement system: Complaints Committee or Advertising Jury (Jurado de la Publicidad) and
  3. Prior control mechanisms Copy Advice® and Cookie Advice. There is no pre-clearance per se in Spain; however, some sectoral codes and co-operation agreements with Autocontrol require adhered companies to obtain copy advice for advertising in certain media. This is not always mandatory; for example, it is voluntary for Cosmetics under the STANPA Code

 

 

MANDATORY COPY ADVICE 

 

Copy Advice is compulsory under some Codes for adhering companies, and is binding:

 

  • Code of co-regulation of advertising for food and beverage products directed to children, prevention of obesity and health PAOS Code. Prior copy advice is required for all advertisements aimed at children under 12, and for food and beverage TV commercials broadcast during children’s enhanced protection viewing times (between 8–9am and 5-8pm on weekdays, and 9am–12pm on weekends and public holidays (1st, 6th Jan; Good Friday; 1st May; 12th October; 1st November; 6th, 8th, 25th Dec), during which time it is prohibited to broadcast programmes rated as +12). See Section B (4) (1) PAOS Code
  • Self-Regulatory Code for advertising toys to children EN. Those companies affiliated to the Code undertake to send all TV advertisements for binding copy advice; see p. 15 of linked translation; Section 3 (1). Whilst the Code states all toy ads must be sent for advice, Autocontrol have confirmed that, since the code’s application, this has been interpreted and implemented as for TV advertising only
  • Alcohol codes:

 

  • BEER: following an agreement between Cerverceros and Autocontrol in 2009, copy advice is required for all Brewers’ TV commercials, per the Brewers Code (EN) itself; mandatory for TV, optional for other media
  • WINE: under Chapter VI of the OIVE Wine Code (EN), copy advice is mandatory for TV, optional for other media
  • SPIRITS: FEBE and Autocontrol contracted in April 2014 that FEBE members or those observing their Code must request Copy Advice® prior to advertising in TV, cinema, press, radio and outdoor
 

AUTOCONTROL AND CONFIANZA 

 

Re the General Code of Advertising Practice (EN) and the Confianza Online Ethical Code (ES). Autocontrol membership implies commitment only to the General Code. The Confianza Code is one of several sectoral Codes managed by Autocontrol that apply only to their members. Nevertheless, for the time being Autocontrol membership allows membership of Confianza Online at no extra charge; therefore, most Autocontrol members are also members of Confianza Online

 

 

ADVICE SERVICES 

 

(also see above under january 2021)

 

Autocontrol provides four types of advice service: 

 

  1. Legal Advice: this is informal legal advice, since January 2015 provided verbally, concerning general advertising issues, e.g. legislation, jurisprudence, ethics, etc. Requests are usually answered within 48 hours by telephone. Free to members, though there is a charge if a quota is exceeded. €436 non-members
  2. Copy Advice©: a legal report issued by Autocontrol’s Technical Committee, which provides advertisers, agencies, media, and professional associations with written opinion/ advice on a specific advertisement before it is disseminated, discussing any revision needed to achieve compliance with Self-Regulatory codes and relevant legislation. Requests are voluntary, confidential, non-binding except where expressly provided in sectoral agreements/ codes, and available free of charge to Autocontrol members for a set number – determined by membership fee and social category – after which a fee of €90 is required per additional advice. There is a €672 charge per request from non-members. The service is normally provided within three working days

 

  • TV: commercials up to 60 secs shall count as one Copy Advice®; every extra 60 second segment from that first minute will count as one additional
  • Websites: one Copy Advice® will apply for every page analysed on the website
  • Catalogues/ brochures: one Copy Advice® for every 4 pages of the catalogue

 

Express Copy Advice: A Copy Advice Express Service is also available, delivered in one working day. The price for members is €566, and €1,131 for non-members or advertisers who are non-members. Copy Advice® Express requested before 13:00 (1pm) will be delivered within one working day following the day on which the required documentation and information was provided (working hours: Mon-Thurs 9am – 6pm; Fri 9am – 3pm; June 15 - Sept 15 8am – 3pm; holidays not included)

 

  • Express copy requests in relation to advertising materials of great size or long duration will not be accepted
  • No more than x2 express copy advice requests per week and no more than x5 requests per month, nor between August 1 and 31

 

  1. Legal Website Report (for websites of 30 pages, additional costs thereafter): this is a review of websites provided to advertisers, agencies, the advertising media, and professional associations consisting of a detailed analysis of the lawfulness and deontological correctness of the advertising contents included in the analysed website. It is strictly confidential, non-binding, and carries a €2,060 charge for members or €4,833 for non-members. In those cases where the website has more than 30 pages, each additional page will be considered as one Copy Advice© in terms of invoicing (i.e. €672)
  2. Cookie Review Service/ Cookie Advice® Service: a legal review which helps companies to implement their cookie policies in order to meet cookie (or similar storage and retrieval technologies) legal requirements from article 22.2 of the Law on Information Society and Electronic Commerce Services (LSSICE)

 

The Cookie Advice Service is in 3 stages:

 

  1. Technical analysis: Autocontrol’s Technical Team locates cookies (including third party) installed through a specific website, platform or computing application, reviews them one by one and identifies their usage. Also detects spy cookies (flash cookies; local storage and similar technologies)
  2. Legal analysis: Legal review of compliance with LSSICE and the 'Guide on the Use of Cookies', from the Spanish Data Protection Agency (AEPD) with Autocontrol, Adigital and IAB Spain. Autocontrol’s legal team, based on these principles:

 

  • classifies cookies in terms of their purpose, the entity managing them, and their expiration
  • checks if proper information is given on their use
  • checks if informed consent is correctly obtained
  • analyses the correctness of the cookies policy and banner text
  • Optional: Review of the terms of third-party contracts

 

  1. Written verification report: If the website complies with LSSICE and 'Guide on the use of Cookies', Autocontrol will issue a positive report. Otherwise, the report sets out recommendations for modifications needed to comply and obtain a positive report

 

This service is normally provided within ten days. Although the Cookie advice service is voluntary, the Guide on the use of Cookies recommends regular verification. Cost for members €848 and non-members €1,697

 

 

Autocontrol services:

https://www.autocontrol.es/servicios/

 

 

CLEARANCE

 

Autocontrol 10 – 14 days TV/VOD/Online/Sponsorship (incurs fees)

For help, contact the Traffic Bureau administration@trafficbureau.net

 

 

Read more

E. Links

SECTION E LINKS/ SOURCES

 

 

EUROPEAN LEGISLATION 

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures. Both came into force May 25 2018:

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB

 

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

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.h

 

Four recent and significant papers in the GDPR context:

 

 

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 a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). 

 

 

The Omnibus Directive 

 

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

 

Pricing

 

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

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

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

https://ec.europa.eu/info/sites/default/files/c_2021_9328_1_pid-guidance_en.pdf

 

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

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

 

E-privacy

 

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

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

 

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

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

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

E-commerce

 

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

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

 

 

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EU Commission guidance environmental claims

 

1. Compliance Criteria on Environmental Claims; multi-stakeholder advice to support the implementation of the Unfair Commercial Practices Directive (2016). A multi-stakeholder group on environmental claims (MDEC), coordinated by the European Commission and composed of representatives of national authorities, European business organisations, consumer associations and environmental NGOs, provided input to an EU-wide ‘Consumer Market Study on Environmental Claims for Non-Food Products’. Following the findings of this study, the group developed ‘Compliance Criteria on Environmental Claims’, which reflects its common understanding on the application of the Unfair Commercial Practices Directive in this area. This advice is not legally binding, but has fed into the revision of the updated document ‘EU Commission Guidance on the Implementation/ application of Directive 2005/29/EC on Unfair Commercial Practices’, section 5.1)

http://ec.europa.eu/consumers/consumer_rights/unfair-trade/unfair-practices/files/mdec_compliance_criteria_en.pdf

 

2. EU Commission Guidance on the Implementation of Directive 2005/29/EC on Unfair Commercial Practices (May 2016). The purpose of this guidance document is to facilitate the proper application of Directive 2005/29/EC on unfair business-to-consumer commercial practices in the internal market. It provides guidance on the UCPD’s key concepts and provisions and practical examples taken from the case law of the Court of Justice of the European Union, and from national courts and administrations on how to implement it. The Guidance includes a specific section on the application of the UCPD to environmental claims (Section 5.1), which has been updated following the publishing of the Compliance Criteria on Environmental Claims.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

3. EU Commission Guidelines for making and assessing Environmental Claims (Dec 2000). The guidelines, which are consistent with the international standard ISO 14021-1999, contain references to environmental claims that should be deemed misleading

http://ec.europa.eu/consumers/archive/cons_safe/news/green/guidelines_en.pdf

 

 

NATIONAL LEGISLATION 

 

Advertising

 

Law 34/1988 of 11th November, General Advertising; entered into force 05/12/1988. Ley 34/1988, de 11 de noviembre, General de Publicidad. This Law partly transposed Directive 84/450/EEC concerning misleading advertising, subsequently repealed and codified by Directive 2006/114/EC. Relevant section: Title II Unlawful advertising and measures to prevent it happening (Arts. 3-6). The Law prohibits advertising that violates fundamental constitutional rights, unfair competition including misleading and aggressive advertising, and surreptitious and subliminal advertising. It also prohibits discriminatory or disparaging portrayal of women. Law 13/2022 of July 7 on General Audiovisual Communication provided amends to article 5 of Law 34/1988 covering some aspects of alcohol advertising and Organic Law 10/2022, of September 6 added to the protective measures for vulnerable consumers under article 3.  Consolidated text:

https://www.boe.es/eli/es/l/1988/11/11/34/con

Unofficial English translation of key clauses inc. 2022 amends:

http://www.g-regs.com/downloads/SPGenAdvertisingLaw3419882022EN.pdf

 

Unfair competition

 

Law 3/1991 of 10th January on Unfair Competition. Ley 3/1991 de 10 de enero de Competencia Desleal. Chapters II Acts of Unfair Competition and III Commercial practices involving consumers and users. This law carries provisions from the Unfair Commercial Practices Directive 2005/29/EC and the Misleading and Comparative Advertising Directive 2006/114/EC. Royal Decree 24/2021 (ES), of November 2 under article 84 transposed the provisions of Directive 2019/2161 that relate to search rankings, consumer reviews and international marketing into articles 5, 26 and 27 of Law 3/1991, which distinguishes between two types of unfair conduct: ‘Acts of unfair competition’, which affect companies/ businesses as well as consumers, the latter in Articles 4, 5, 7 and 8, Chapter II and ‘Commercial practices involving consumers and users’ in Chapter III, Articles 19-31. This section regulates acts of misleadingness towards consumers, separate to the acts of misleadingness from Article 5. Aggressive practices introduced in Article 8 are expanded in Articles 28 to 31. Practices from Articles 20-31 will be considered unfair commercial practices in all cases and circumstances (Art. 19.2). Consolidated text:

https://www.boe.es/eli/es/l/1991/01/10/3/con

Unofficial English translation:of key clauses inc. 2022 amends:

http://www.g-regs.com/downloads/SPUnfairCompLaw319912022CENb.pdf

 

 

Consumer protection/ distance selling

 

Royal Legislative Decree 1/2007, of 16 November approving the revised text of the General Law on the Protection of Consumers and Users and other supplementary laws. The Consumer Protection Act; entry into force 01/12/2007. This act applies to the relationships and contracts between consumers and businessmen or companies. Articles 92–100 provide a special regime applicable to distance sales contracts; article 20 covers information requirements for an ‘invitation to purchase’; Article 96 covers distance commercial communications. These provisions are additional to those in Law 34/2002 of 11 July (E-commerce act); in case of contradiction, the E-Commerce act will take precedence (see Art. 94). Law 4/2022, of February 25, on the protection of consumers and users in situations of social and economic vulnerability amends article 20 of RLD 1/2007, adding further protection to vulnerable users under Sections 2  and 3. Royal Decree 24/2021, of November 2 article 82.2 amends article 20 to incorporate the provisions from Directive 2019/2161 re search rankings. Consolidated text:

https://www.boe.es/eli/es/rdlg/2007/11/16/1/con

Unofficial English translation, article 20 only:
http://www.g-regs.com/downloads/SPRLD12007GenProtection2022EN.pdf

Other relevant articles in English here:

http://www.g-regs.com/downloads/SPDistSellingRLD1_2007Art.96.pdf

2014 Ministry translation of full law EN

 

Pricing

 

National law in the form of Royal Decree 3423/2000 of 15 December, transposing the Product Price Directive 98/6/EC, establishes in Article 3 that when a price is stated it should be the ‘final’ price, including VAT and all other taxes:

https://www.boe.es/eli/es/rd/2000/12/15/3423/con (ES)

http://www.g-regs.com/downloads/SP_PriceIndication_RD3423-2000_EN.pdf (EN)

 

 

Channel legislation

 

TV, Radio, VOD

 

General Law on Audiovisual Communication 7/2010 of 31st March. Entry into force 01/05/2010. This law implements the AVMS Directive 2010/13/EU and so regulates audiovisual media services TV/ Radio, linear and non-linear/ on-demand (Art.2.2), and establishing rules for sponsorship, tele-shopping and product placements. This applies only to private broadcasting channels; national public channels do not carry advertising. Consolidated text:

http://boe.es/buscar/act.php?id=BOE-A-2010-5292

English translation of key clauses:

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

 

General Law on Audiovisual Communication 13/2022 of 7 July. Repeals the former general AV law above and transposes the amends to the AVMS Directive 2010/13/EU brought about by Directive 2018/1808 which, for the purposes of this database, largely concern the extension of scope into video-sharing platforms. Consolidated text:

https://www.boe.es/eli/es/l/2022/07/07/13

Unofficial non-binding English translation of key clauses inc. 2022 amends:

https://www.g-regs.com/downloads/SPGenAVLaw2022ContentrulesEN.pdf

 

Royal Decree 1624/2011 of 14th November approving the Regulation developing the Spanish General Law 7/2010 of 31 March on Audiovisual Communications regarding television advertising, in force 07/01/2012. The regulation supplements the General Law 7/2010 and develops some elements that were deemed not sufficiently clear in the General Law, such as the calculation of advertising minutage and the maximum number of breaks. The law more clearly defines sponsorship, product placement, and marcoms during broadcasting of sports events. Consolidated text:

https://www.boe.es/eli/es/rd/2011/11/14/1624/con

English translation of key clauses:

http://www.g-regs.com/downloads/SPRD1624-2011tsedit.pdf

 

Direct mail

 

Royal Decree 1829/1999, of December 3, which approves the Regulation for the provision of postal services, in accordance with the provisions of Law 24/1998, of July 13, of the Postal Service Universal and Liberalization of Postal Services. Entry into force 01/01/2000. See article 13 (D), which requires identification of promotional mail via the letters ‘PD’:

https://www.boe.es/buscar/act.php?id=BOE-A-1999-24919

 

E-commerce

 

Law 34/2002 of 11 July, on information society services and electronic commerce; entry into force 12/10/2002Ley de servicios de la sociedad de la información y de comercio electrónicoabbrev. LSSI or LSSICE)This law implemented the E-Commerce Directive 2000/31/EC and also incorporated some of the provisions of the E-Privacy Directive 2002/58/EC (Article 13). Law 34/2002 establishes a number of information requirements (Art. 10) for any company providing ‘Information Society Services’, defined as those normally provided for remuneration (included are unpaid services, as far as it represents an economic activity for the service provider), at a distance, electronically and at the individual request of the user. It also regulates companies sending of electronic commercial communications in Title III, Articles 20 and 21.

https://www.boe.es/eli/es/l/2002/07/11/34/con (ES)

http://www.g-regs.com/downloads/SP34_2002LSSICE.pdf (EN)

 

Data protection 

 

The General Data Protection Regulation GDPR (see opening entry in this section), directly applicable in member states and applying to the processing of personal data, was introduced in May 2018. Nationally, the 3/2018 Law on Data Protection and Digital Rights, whose purpose inter alia is to 'adapt Spanish law to the model established by the GDPR' (from the AEPD), deals with significant matters excluded by European law/ GDPR e.g. '"data processing related to common foreign and security policy, and to the prevention, investigation, detection or prosecution of criminal offences". See Barcelona University blog. Article 7 states the ‘qualifying’ age of a minor to provide consent to processing of personal data to be over 14; parents or guardians must authorise consent of under 14s. The 3/2018 law on Data Protection is here (ES):

https://boe.es/boe/dias/2018/12/06/pdfs/BOE-A-2018-16673.pdf

 

Regulatory authority

 

The Data Protection Authority is Agencia Española de Protección de Datos (AEPD)

https://www.aepd.es/es/la-agencia/bienvenida-la-agencia

Guide on the Use of Cookies (ES) June 2022. The AEPD updated this guide to adapt it to the new guidelines of the European Data Protection Board (see above under EDPB)

https://www.aepd.es/es/documento/guia-cookies.pdf (ES)

 

Sales promotions

 

Law 7/1996 of 15 January on Retail Trade; entry into force 06/02/1996. (Ley 7/1996, de 15 de enero, de ordenación del comercio minorista). The Law includes a section on Pricing (Chapter III; Title I) and a title on sales promotion activities (Title II, relevant provisions Articles, 18,19, and 32, promotion of sales with accompanying gift). Royal Decree 24/2021 of November 2 amended article 20, in force May 28,2022, of the Retail Trade Law to incorporate promotional pricing rules from Directive 2019/2161, which amended the Product Price Directive 98/6/EC. Consolidated text:

https://www.boe.es/eli/es/l/1996/01/15/7/con

Unofficial, non-binding English translation inc. 2022 amends:

http://www.g-regs.com/downloads/SPRetailTradeLaw2022amendsEN.pdf

 

The Gambling Act 13/2011 regulates gambling activities carried out via electronic, computer, telematic or ‘interactive’, which covers television, the Internet, mobile and landline telephones or any other, or interactive communication, whether it is in real or delayed time (art. 3h) means where ‘in-person channels are rendered accessory’ (Art. 1), so this law is applicable to contests and draws carried out via/ on the Internet and social networks:

https://www.boe.es/buscar/act.php?id=BOE-A-2011-9280 (ES)

http://www.g-regs.com/downloads/SPGamblingLaw13_2011Gambling.pdf (EN)

 

 

INDUSTRY CODES

 

The Spanish advertising Self-Regulatory Organisation (SRO) is Autocontrol (AC) Asociación para la Autorregulación de la Comunicación Comercial. AC collaborates with other associations and organisations in the development of Sectoral Advertising Codes, signing various agreements in which AC enforces and monitors compliance with the code. Some sectoral codes require adhering companies to obtain copy advice.

 

Autocontrol General Code of Advertising Practice 2021. Autocontrol has one main Code of Conduct, which covers commercial communications of all products/ services, except political advertising, in all media and applicable to all members of Autocontrol, and covers all advertising whose aim is to promote, directly or indirectly, whatever the means, format, or media used, the procurement of goods or services, or the strengthening of brands or trademarks.

https://www.autocontrol.es/wp-content/uploads/2021/05/codigo-de-conducta-publicitaria-autocontrol.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2021/03/code-of-advertising-practice-autocontrol.pdf (EN)

 

Confianza Online Ethical Code, February 2022. Confianza Online is the non-profit association created in 2003 by Autocontrol and Adigital (the Spanish Association of Digital Economy) with the aim of increasing trust of users online; entered into force January 2003 and covers important self-regulatory ground under Title III in e-Commerce, Data Protection and Protection of Minors. The most recent February 2022 version updates Title IV in accordance with the GDPR. Ethical Code 2022 ES:

https://www.autocontrol.es/wp-content/uploads/2022/03/codigo-de-conducta-de-confianza-online.pdf

GRS non-binding unofficial translation of the key articles:

http://www.g-regs.com/downloads/SPCOEC2022GRSEN.pdf

 

Influencers 

 

The Code of Conduct on the use of Influencers in advertising has been published by the Association of Spanish Advertisers and Autocontrol. The Code enters into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. The Code defines when Influencer advertising qualifies as such and sets out identification requirements:

https://www.autocontrol.es/wp-content/uploads/2020/10/codigo-de-conducta-publicidad-influencers.pdf (ES) 
http://www.g-regs.com/downloads/SPGenInfluencerCode2020ENonly.pdf (EN)

 

Data processing

 

The Spanish Data Protection Authority (AEPD, Spanish DPA) has approved the Code of Conduct for Data Processing in Advertising Activities. This is the first Code of Conduct on data protection approved by the Spanish DPA under the umbrella of the General Data Protection Regulation (GDPR). The main objective of this Code is to establish an out-of-court system to process complaints about data protection and advertising. The new procedure is operational from 1 January 2021:

https://www.autocontrol.es/wp-content/uploads/2020/10/codigo-de-conducta-publicidad-influencers.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2020/11/code-of-conduct-data-processing-in-advertising-activities.pdf (EN)

 

Cinema

 

Code of Ethics on Advertising in Cinema. (Código ético de publicidad en cine de las principales agencias de exclusivas de publicidad cinematográfica) Entry into force 30 June 2016. An agreement establishing this Code of Ethics was signed between Autocontrol and the main agencies responsible for cinema advertising – Movierecord, Discine and 014 - on May 30th 2016 in Madrid. The new text is an update of the previous Code from 2001, taking into account changes in advertising practice and legislation. The Code establishes some general and specific rules in Chapter 3 on the protection of children (Art. 6), alcoholic beverages (Art. 7), and movie promotions in the form of trailers (Art. 8). In Spanish:

https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-etico-de-publicidad-en-cine.pdf

 

Environmental advertising

 

Self-Regulatory Code on the use of environmental claims in commercial communications (2009)The Ministry of Agriculture and Fisheries, Food and Environment MAPAMA, Autocontrol and 19 companies from the Energy and Automotive sectors signed an agreement on the use of environmental claims in advertising. The Code only applies to the signatory industries and to the adhering companies from the Energy and Automotive sectors:

https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-de-buenas-pr%E2%80%A0cticas-para-el-uso-de-argumentos-ambientales-en-la-publicidad-comercial.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2020/01/self-regulation-commercial-communications_tcm30-70734.pdf (EN)

 

Spanish marketing association

 

Ethical code:

http://www.asociacionmkt.es/actividad/codigo-etico-de-la-profesion/

 

IAB Spain/ Europe

 

IAB Spain:

https://iabspain.es/quienes-somos-iab-spain#iab-spain-misin

Legal guides:

https://iabspain.es/legal/#guas-legales

How to Comply with EU Rules Applicable to Online Native Advertising:

https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/

IAB Transparency and Consent Framework: 

https://iabeurope.eu/transparency-consent-framework/

 

IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)

 

INTERNATIONAL SELF-REGULATION

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

 

 

Chapter A . Sales Promotion

Chapter B.  Sponsorship

Chapter C.  Direct Marketing and Digital Marketing Communications

Chapter D . Environmental Claims in Marketing Communications

 

Additional ICC Guidance and Frameworks

(non-exhaustive)

 

The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here

https://cdn.iccwbo.org/content/uploads/sites/3/2012/11/ICC-Resource-Guide-for-Self-Regulation-of-Online-Behavioural-Advertising-1.pdf

Mobile Supplement to the ICC Guide for Self-Regulation of Interest-based Advertising 

https://cdn.iccwbo.org/content/uploads/sites/3/2018/07/icc-mobile-supplement-to-iba-guidance.pdf

ICC Guide for Responsible Mobile Marketing Communications

https://cdn.iccwbo.org/content/uploads/sites/3/2018/08/icc-guide-for-responsible-mobile-marketing-communications.pdf

The ICC’s Guidance on Native Advertising Is in English here:

https://cdn.iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf

 

 

WFA

World Federation of Advertisers

 

From their website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':

https://www.wfanet.org/

This is their ‘GDPR Guide for Marketers’:

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

EASA

 

The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as Autocontrol) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:

http://www.easa-alliance.org/members

EASA’s Best Practice recommendation on Online Behavioural Advertising is here:

http://www.easa-alliance.org/sites/default/files/EASA Best Practice Recommendation on Online Behavioural Advertising_0.pdf

And on Digital Marketing Communications here:

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

Influencer Marketing:

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

ESA

 

The European Sponsorship Association was formed in October 2003. ESA’s central aim is to encourage and promote good practice within the sponsorship industry. ESA can be found here:

http://www.sponsorship.org

The ESA code of Conduct is here:

https://sponsorship.org/membership/code-of-conduct/

ESA require that Members will abide by the ICC Advertising and Marketing Communications Code, which incorporates Sponsorship under Chapter B, and ‘all applicable legal and self-regulatory requirements in the territories in which they operate.’

 

FEDMA

 

Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:

http://www.fedma.org/index.php?id=30

 

 

NATIONAL ASSOCIATIONS 

 

AEA

 

The Spanish Advertisers Association - Asociación Española de Anunciantes (AEA). Founded in 1965, AEA represents advertising companies, defending their interests in anything related to marketing communications in Spain. The AEA currently consists of 160 members whose advertising spend accounts for 70% of TV advertising and represents 50% of the remaining media spend. It is a member of the World Federation of Advertisers (WFA). One of the activities of the association is to develop professional documents, codes of conduct and procedural arrangements, including a Code of Conduct here 

http://www.anunciantes.com/

 

AEPE

 

The Spanish Association of Outdoor Advertising - Asociación Española de Publicidad Exterior (AEPE)

http://www.aepe.org/

 

Opt-out Register 

 

Robinson lists. The Robinson List service enables consumers to register their desire not to receive advertising. Individuals can request that their respective data is deleted from lists of specific companies that send advertising by postal mail, email, or telemarketing. It is managed by the Spanish Association of Digital Economy (Adigital) and was created under the provisions of the Data Protection legislation:

https://www.listarobinson.es

 

 

OTHER REGULATORY AUTHORITIES

 

CNMC

 

National Markets and Competition Commission (CNMC - Comisión Nacional de los Mercados y la Competencia) created by Law 3/2013 is the independent authority in charge of both competition and regulatory matters in Spain under Article 1 Law 3/2013: "The CNMC aims to guarantee, conserve, and promote the correct operation, transparency and the existence of effective competition in all markets and productive sectors, to the benefit of consumers and users".  It will thus have hybrid functions: enforcing competition rules (provisions of Law 15/2007 of 3rd July on Competition) as well as regulating economic sectors – including Telecommunications, in the form of Gen. Telecoms Law 9/2014; see Article 70(2) for functions, and audiovisual media in the form of the AVMS Law 7/2010 of 31 March; see Art. 9 Law 3/2013. The new authority became fully operational in October 2013. The authority signed an agreement in June 2015 with Autocontrol to promote co-regulation on TV commercial communications. See AC Brochure here (page 9).

 

 

 

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