SECTION C: TV & RADIO/ AV

• All relevant rules are from the Broadcasting Act here (EN key clauses) along with regulations issued by the National Broadcasting Council, as stipulated under the act, which implements the AVMS Directive 2010/13/EU. National Broadcasting Council translation here
• The general rules on structure, minutage etc. we have assembled into a separate file here; more specific rules are set out below
• The Regulation of the National Broadcasting Council of 30 June 2011 (PO) concerning principles of advertising and teleshopping in radio and television programme services
• A Self-Regulatory agreement (PO) (EN) on the advertising of foods and drinks to children below the age of 12. No programmes for children under 12 may include commercial communications of certain ‘unhealthy’ foods, identified in appendix 2 to the RR Code of Ethics in Advertising (EN)

• The content rules set out in our earlier section B apply; both the sector-specific rules, i.e. those for children, and the ‘general’ rules shown under the General tab in section B
• The principal source of rules is the RR Code of Ethics in Advertising (EN); in legislation, the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends)
• The channel rules that apply to all sectors and audiences, children included, also apply. These are shown under the General tab below

Children and young people

• Arts. 16a and b. It shall be prohibited to broadcast commercial communications that:

1. Directly exhort minors to purchase products or services
2. Encourage minors to exert pressure upon their parents or other persons to persuade them to purchase the products or services being advertised
3. Exploit the trust minors place in parents, teachers or other persons
4. Unreasonably show minors in dangerous situations
5. Are of a subliminal nature

• Commercial communications must not prejudice the physical, mental or moral development of minors
• The following programmes may not be interrupted by advertising or teleshopping: Children’s programmes
• Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients, excessive intakes of which in the everyday diet are not recommended
• After seeking opinion of the minister in charge of health, the National Council may define:

1. Types of foods or beverages containing ingredients, excessive intakes of which in the everyday diet are not recommended
2. Manner of inserting commercial communications for these products in programme services so that they do not accompany children’s programmes

•  Art. 17a. Product placement in children’s programmes is prohibited
• It shall be forbidden to use in advertising, with the exception of self-promotion, the voice or image of persons who hosted news programmes, commentaries or children’s programmes in radio or television programme services less than 3 months before the broadcast of the advertising  (S. 8 of the 2011 Regulation)

• No programmes for children under 12 may include commercial communications of certain ‘unhealthy’ foods, identified in appendix 2 to the RR Code of Ethics in Advertising here (EN)

• The PEGI code is here; see article 11 advertising and promotion. There are separate PEGI labelling and advertising guidelines which detail requirements by medium; check with PEGI

SECTION C: TV & RADIO/ AV

APPLICABLE REGULATIONS 

• The content rules set out in section B apply to all channels except where identified; content rules specific to broadcast are below
• Broadcasting Act (BA) of December 29, 1992 PO; GRS translation of key provisions EN; articles 16a-c, 17, 17a, 47k
• The above was amended by the act of August 11th 2021 (PO), which transposed Directive 2018/1808 extending AVMSD rules online and introduces transparency rules for video-sharing platforms, shown under Chapter 6b of the consolidated Broadcasting Act. Commercial communications' content rules are essentially unchanged and are shown for the Directive here (EN)
• This article Amendment to the Broadcasting Act to take effect from Traple Konarski Podrecki & Partners/ Lexology is helpful on the amends referenced above, most of which were in force November 1, 2021
• Regulation of the National Broadcasting Council of 30 June 2011 (PO) on conditions of product placement; per art. 17a (9) BA
• Regulation of the National Broadcasting Council of 6 July 2000 (PO) on sponsoring programme items and other broadcasts; amended by Regulation of the National Broadcasting Council of 27 July 2011, per art. 17 (8) BA
• Regulation of the National Broadcasting Council of 30 June 2011 (PO) on principles of advertising and teleshopping in radio and television programme services; per article 16 (7) BA

KEY CLAUSES

• Commercial communications must be readily recognisable (Art. 16.1). Also applicable to VOD, as per art. 47 BA
• It is prohibited to broadcast commercial communications that (Art. 16b (2) BA):

1. Directly exhort minors to purchase products or services
2. Encourage minors to exert pressure upon their parents or other persons to persuade them to purchase the products or services being advertised
3. Exploit the trust minors place in parents, teachers or other persons
4. Unreasonably show minors in dangerous situations
5. Are of a subliminal nature

• Commercial communications must not (Art. 16b (3) BA):

1. Offend against/ violate human dignity
2. Include any discrimination on grounds of race, sex, nationality, ethnic origin, religion or belief, disability, age or sexual orientation
3. Be offensive to religious or political beliefs
4. Prejudice/ jeopardise the physical, mental or moral development of minors
5. Encourage behaviour prejudicial to health, safety or environmental protection

• Article 16b (3a) Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients excessive intakes of which in the everyday diet are not recommended

SECTION C TV/AV AND RADIO

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

Article B12: Media sponsorship

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

​

SECTION C: CINEMA, PRINT, OUTDOOR

• Obviously, those advertisers from child-sensitive sectors such as Alcohol, Gambling, some foods, are required to avoid films at which a significant proportion of children might form the audience (guidance in Poland is minimum 35% +, according to article 3, Annex 2 RR Code of Ethics in Advertising)
• The content rules set out in section B will generally apply, aside from those identified as from the Broadcasting Act; also from legislation, the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) applies
• From the child-specific rules, articles 22-31 of the RR Code of Ethics:
• Articles 22-31 apply accordingly also to advertisements, which are not directly targeted at children, but children are their recipients due to the form, place and method of presentation. This applies particularly to advertisements broadcasted close to children’s programming, advertisements shown in cinemas before children’s movies and to outdoor advertising (Art. 32, RR Code of Ethics)
• In other words, even if you aren’t targeting children, if you have inappropriate (as deemed by the RR Code of Ethics in Advertising) content and there’s more than 35% kids in the audience, you’re in trouble (if there’s a complaint)

Associations

• SAWA is the Global Cinema Advertising Association, the global trade body of Cinema Advertising Companies and Associated Companies that supply services to the Cinema Advertising Industry. Multikino (owned by Vue Entertainment Ltd) is the SAWA member in Poland; Multikino Media will handle cinema advertising sales nationwide
• Cinema City is the largest cinema operator in Poland (40% of multiplex market) followed by Multikino and Helios Cinemas; New Age Media, a subsidiary of Cinema City, provide and implement advertising campaigns of all Cinema City multiplexes

• The content rules set out in section B will generally apply, aside from those identified as being from the Broadcasting Act
• The principal source of rules is the RR Code of Ethics in Advertising (EN); in legislation, the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends)
• Advertisers from child-sensitive sectors obviously need to avoid child-oriented titles as a matter of course, and because every advertisement is considered aimed at children if “in planned targeted media audience share of children under 12 is minimum 35 percent” (art. 3, annex 2, RR Code of Ethics)

• There are no specific restrictions for food and drink products in the outdoor channel; content rules set out in our content section B will generally apply, except for those shown in the TV and radio section above
• The principal source of rules is the RR Code of Ethics in Advertising (EN); in legislation, the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends)
• Some child-sensitive sectors will want to avoid posting near schools; while there is no specific legislation, or clause in the RR Code (though article 3 of annex 2 may cover this issue), some trade associations (alcohol, especially) recommend avoidance of school territory for obvious reasons
• From Adjudications in our content section B, point 5, relating to a poster advertising a film: According to the panel, "advertising placed on billboards should be much more balanced, as recipients of this type of advertising are, willingly or not, also children. The panel stressed that the use of vulgar language in a public space is unacceptable.”

SECTION C: CINEMA, PRINT, OUTDOOR

All of the content rules set out in our earlier section B apply in these channels, except those specific to broadcast media; the principal code is the Rada Reklamy Code of Ethics in Advertising and the key legislation is the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends)

PRINT

• Code of Good Practice of Press Publishers PO / EN from the Polish Chamber of Press Publishers Izba Wydawców Prasy (IWP)

General guidelines

• In advertising or promoting campaigns, the publisher shall ensure that the name, face or voice of a journalist is not used to advertise for a product or service (4.1.5)
• Hidden advertisements, including product placement, shall be forbidden (4.1.10)

Forms of publication

vis. native/ advertorials

• The boundary between advertising material and editorial content shall not be blurred. The form of advertising materials and publications must be such as to make their nature of advertisement or announcement obvious to the reader. Advertising materials and announcements must be clearly set apart from editorial content by graphic elements or a different typeset and labelled as ‘advertisement’ (reklama), ‘promotion’ (promocja), ‘announcement’ (ogłoszenie), ‘sponsored text’ (tekst sponsorowany) or the like, making the nature and origin of such materials obvious to the reader. In particular, any advertisements and announcements that are intended to imitate or use editorial content or the publication’s graphic layout must be rejected (Rule 4.2.2)
• Neither the name nor the logo of an advertiser or announcer may be used on any of the pages devoted to editorial content unless they are labelled as an advertisement (reklama) or announcement (ogłoszeniem). An advertiser or announcer whose logo has been placed on a page with editorial content may not have any influence on editorial content.
• Moreover, an advertiser or announcer’s name or logo may be placed on a page with editorial content in connection with the preparation of events under the publication’s patronage or the financing of prizes in a competition organised by an editorial office or a publisher; the advertiser or announcer must be identified as the sponsor (Rule 4.2.3)
• An advertisement, announcement or promotion may be announced on the front page or in the table of contents of a given issue provided that it is labelled as advertisement, announcement or promotion or that it is the editorial office’s or publisher’s self-promotion (Rule 4.2.3)

• Advertising or promotional supplements attached to a press title under contract from advertisers, including inserts, should clearly differ from editorial content and regular or occasional feature supplements by their shape, graphic layout or typeface, so that the readers may not confuse the pages with editorial content with those of such supplements. Moreover, the title or logo of the publication may not appear in such supplements. The above restrictions shall not apply to the editorial office’s or the publisher’s own promotion measures; the provisions of Rule 4.3.2., last sentence, shall apply mutatis mutandis in such cases. (Rule 4.3.1)
• To ensure clear and unambiguous identification of the advertising supplements referred to in Rule 4.3.1., they should bear a printed caption saying ‘advertisement’, ‘promotional supplement’ or ‘advertising supplement’, or be otherwise marked in a way adopted by the publisher and allowing for clear and unambiguous identification of such supplements. The above shall not apply to inserts whose shape and content clearly indicate their character and origin (e.g., supermarket offers). In the in-house feature supplements (both regular and occasional), any advertisements, announcements, sponsoring or promotions should be clearly marked in accordance with the provisions of Rule 4.2.2. (Rule 4.3.2)

• Whenever prizes in any competitions, lotteries or promotional gift distributions organised by the editorial office or the publisher are provided by an advertiser, an announcer or external persons, those competitions, lotteries or promotions being advertised on pages devoted to editorial content, editorial texts may not suggest that the editorial office endorses or recommends in whatever way the products or services of such advertisers, announcers or other persons (Rule 4.4.1)
• The course of a competition organised by an editorial office or a publisher should remain under the organiser’s exclusive control; an advertiser, announcer or sponsor may not have the decisive influence upon the selection of the winner. In presenting the competition, the editorial office must take care not to imply that it favours the products or services provided by the advertisers, announcers or sponsors as prizes (Rule 4.4.2)

CINEMA

• The Content rules set out in our earlier section B apply to marketing communications in Cinema, except those specific to broadcast

​

SAWA is the Global Cinema Advertising Association, the global trade body of Cinema Advertising Companies and Associated Companies that supply services to the Cinema Advertising Industry.  Multikino (owned by Vue Entertainment Ltd) is the SAWA member in Poland; Multikino Media will handle cinema advertising sales nationwide.

Cinema City is the largest cinema operator in Poland (40% of multiplex market) followed by Multikino and Helios Cinemas; New Age Media, a subsidiary of Cinema City, provide and implement advertising campaigns of all Cinema City multiplexes

OUTDOOR

• The Content rules set out in our earlier Section B apply to outdoor marketing communications, except those specific to broadcast
• The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable Self-Regulation and legislation 

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

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

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

Identity of the marketer (Art. 8)

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

Annex I of the UCPD 

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

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

Article B12 Media sponsorship

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

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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 The RR definition  ‘Aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.’ important. The impact of GDPR is shown below and under individual channel sections where possible

Privacy issues should be reviewed with specialist advisors

• The General Data Protection Regulation 2016/679 (GDPR). For an assembly of the relevant articles and recitals related to children, see point 2 below
• The Telecommunications Act 2004 (EN key clauses) amended in 2013 to implement the EU Cookie Directive 2009/136/EC. Here for the record as there are no child-specific provisions. Rules are under the General tab below 
• The Data Protection Act 2018 (EN key clauses) which applies/ adapts some aspects of GDPR, and implements Directive 2016/680, which accompanies GDPR. Also here for the record, as child-related provisions are from the GDPR and set out under point 2
• The Law on Providing Services by Electronic Means (LPSEM, EN key clauses) 2002 which implements the e-Commerce Directive 2000/31/EC and elements of the e-Privacy Directive 2002/58/EC. These three acts above with GDPR form the core regulation for the protection of privacy in electronic communications. Unsolicited electronic marcoms in different media channels are all subject to opt-in. LPSEM provisions are under the General tab below
• The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) carries the prohibition under article 9.5 of including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them, and article 9.3 prohibits ‘persistent solicitations by fax, email or other remote media'

• The iCC Advertising and Marketing Communications Code; article 19.4 General Provisions and Chapter C, article C7 
• The International Council of Toy Industries Guiding Principles for Advertising and Marketing Communication to Children. See point 4 below
• The PEGI Code of Conduct. See point 5 below
• From a YT blog of October 2021 is the news 'we’ve recently updated our policies to remove overly commercial content from YouTube Kids, such as videos that only focus on product packaging or directly encourage children to spend money.' Content policies for YouTube Kids
• Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 

• The content rules set out in section B will generally apply, aside from those identified as from the Broadcasting Act. From those child-specific rules, i.e. articles 22-31 of the RR Code of Ethics in Advertising:
• Articles 22-31 apply accordingly also to advertisements, which are not directly targeted at children, but children are their recipients due to the form, place and method of presentation (Art. 32, Code of Ethics)
• In other words, even if you aren’t targeting children, if you have inappropriate (as deemed by the RR Code of ethics) content and there’s more than 35% kids in the audience, you’re in trouble (if there’s a complaint)
• Non paid-for channels in Poland, such as marketers’ own websites and SNS spaces, are 'in remit' i.e. covered by the rules. Specifics are available later in this section, but the principle applied in paid space also applies in unpaid or owned space: if it’s a marketing communication, it’s covered
• The general channel (i.e. placement) rules, i.e. those that apply to all sectors and audiences, children included, are set out under the General tab below

From the EC Data Protection pages relating to the GPPR:

‘Are there any specific safeguards for data about children?

• Your company/organisation can only process a child’s personal data on grounds of consent with the explicit consent of their parent or guardian up to a certain age. The age threshold for obtaining parental consent varies between 13 and 16 years, depending on the age established in each EU Member State. Check with your National Data Protection Authority (Note: In the case of Poland, that’s UODO; they refer in their GDPR guidelines (see below) to ‘children’ in this context being under 16.)
• A reasonable effort must be made, taking into consideration available technology, to verify that the consent given is truly in line with the law. That means that your company/ organisation must implement age-verification measures (for example control questions, actions on the website)
• The consent from the parent or guardian must be obtained if your organisation works on online social networking sites that provide free games to children or family insurance, for example
• If your organisation targets children, you must ensure that any information and communication addressed to a child is easily accessible and in clear and plain language that a child can easily understand’

References and guidelines

• Articles 8 and 12 and Recitals (38) and (58) of the GDPR. References are here:
  http://www.g-regs.com/downloads/CHEUGDPRrefs.pdf
• European Data Protection Board Guidelines on Consent under Regulation 2016/679; see Section 7.1. This is definitive guidance on Consent issues relating to the GDPR generally and children in particular, providing e.g. direction on the obtaining of consent from parental authorities, rules relating to Information Society Services etc.
  https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_202005_consent_en.pdf

National guidelines

From the Data Protection Authority UODO, ’10 tips on how to exercise the rights guaranteed by the GDPR’

• Protect children from dishonest practices. If you are a parent or a legal guardian of a person under the age of 16, remember that when she or he uses the so-called information society services (provided electronically), e.g. social networks, applications or games, you decide on the consent to the processing of personal data. This is important, because children are often less aware of the risks and consequences of processing of their personal data. The GDPR indicates that special protection should be provided to them when their data is used for marketing purposes or for the creation of personal profiles. Pay attention whether the messages addressed to them by the controller are formulated in a language that they are able to understand

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 Definition The Rada Reklamy definition is ‘aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' important, especially as there is so much content in a ‘blurred’ online environment .

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 under individual channel sections; in broad, when processing personal data related to e.g. databases for marketing purposes, rules from the GDPR now apply in all member states. Privacy issues should be reviewed with specialist advisors

• 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 rules is from the Rada Reklamy Code of Ethics in Advertising. Exemptions are under Article 3. Key in legislation is The Law on Counteracting Unfair Commercial Practices PO/EN (2022 amends)

APPLICABLE SELF-REGULATION 

UOKIK Recommendations Influencer Advertising (EN) announced 26/9/22

Above is link to UOKIK news story, full Recommendations here (EN) and GALA/ Lex commentary here 

• As above, the Rada Reklamy Code of Ethics in Advertising applies to advertising as defined under article 3 and incorporates Chapter VII Direct Marketing 
• Code of Ethics Polish Direct Marketing Association (SMB) PO / EN Chapter VI E-Commerce; Section 37 Commercial Communication
• Code of Good Practice in Mobile Advertising PO / EN from mobile operators Polska Telefonia Cyfrowa, Polkomtel, Orange and P4 in conjunction with IAB Poland

APPLICABLE LEGISLATION 

• If processing personal data, lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
• The Act on the Provision of Services by Electronic Means (PSEM) PO / EN (Arts. 9.1/ 9.2) implements elements of the e-Commerce 2000/31/EC and e-Privacy 2002/58/EC Directives
• The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) applies to B2C commercial practices. Includes e.g. misleadingness rules and 'Invitation to purchase' requirements as well as an 'intrusion' clause under article 9/3. Transposes UCPD 2005/29/EC
• The Unfair Competition Act UCA PO / EN; note on translation here, applies in B2B and in this context mainly relates to comparative advertising. Transposes the Misleading and Comparative Advertising Directive MACAD 2006/114/EC
• The Broadcasting act was amended by the act of August 11th 2021 (PO) that transposed Directive 2018/1808; the Directive extends AVMSD rules online and in particular to video-sharing platforms: platforms must identify to users commercial communications in posts where known, and require the same of contributors. Content rules are essentially unchanged and shown for the Directive here
• 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

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels, online included
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth platforms online; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (linked above): Direct Marketing and Digital Marketing Communications; extracts below
• ICC Guide for Responsible Mobile Marketing Communications
• EASA Best Practice Recommendation on Digital Marketing Communications 2015
• EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments

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

• Directive 2000/31/EC on electronic commerce

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

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

Also be aware of:

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

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

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

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

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

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

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

C1. Identification and transparency

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

C2. Identity of the marketer

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

SECTION C: COOKIES AND OBA

Privacy issues should be reviewed with specialist advisors

• Child-sensitive sectors such as e.g. gambling and alcohol will obviously want to avoid cookies that track children’s behaviour; specific rules for such sectors are separately available
• The general cookie rules, i.e. those that apply to all product categories and audiences, children included, are shown in full under the General tab below. In brief, the Telecommunications Act (EN) Arts. 173, 174 applies; implements the Cookie Directive 2009/136/EC
• The introduction of the GDPR 2016/679 from May 2018 may mean that if cookies (can) identify individuals, then GDPR lawful processing rules may apply
• Consent to personal data processing, or other forms of lawful processing, under the GDPR regime can be found under the preceding section, Online Commercial Communications. In short re consent, if the child is under 16, parental or guardian authorisation of consent is required (Articles 8 and 12 of the GDPR)

• OBA, like any other advertising, is subject to the rules set out in our earlier content section B - both the child-specific and the general rules - except those that identify Broadcast channels; the principal set of rules is the RR Code of Ethics in Advertising which applies to all sectors and media; see the articles 22-32 re children especially; in legislation, the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) applies
• The Channel (i.e. placement) rules for all product categories and audiences also apply; see the General tab below
• The tracking/ tracing cookies that may generate behavioural advertising, albeit third party, may also be subject to the cookie rules referenced above. Check with specialist advisors
• The definitive official guidance on profiling for marketing purposes is here: Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679. See Chapter V Profiling and Children. From that: ‘Because children represent a more vulnerable group of society, organisations should, in general, refrain from profiling them for marketing purposes. Children can be particularly susceptible in the online environment and more easily influenced by behavioural advertising. For example, in online gaming, profiling can be used to target players that the algorithm considers are more likely to spend money on the game as well as providing more personalised adverts. The age and maturity of the child may affect their ability to understand the motivation behind this type of marketing or the consequences. ‘ (Footnotes excluded)

International self-regulation

A good number of companies and organisations in Europe are supporters of and engaged in the 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 to 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. Note  that OBA segments may not be created for children (under 12)

• EASA publish a Best Practice Recommendation for OBA; under Principle III A, children’s segmentation: ‘The standard expresses that third parties should not create segments that are specifically designed to target children using Online Behavioural Advertising. The BPR does not restrict the collection of OBA data for the purpose of marketing children’s products to parents and other adults.’

SECTION C: COOKIES AND OBA

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

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

Privacy Sandbox next steps. May 18, 2023

• In the context of GDPR 2016/679: when cookies identify individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors;
• OBA is in remit and therefore subject to the rules set out in content section B, except those rules specific to broadcast. Principal source of marcoms rules is the Rada Reklamy Code of Ethics in Advertising;
• IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising;
• From ICAS' March 2022 newsletter: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here;
• The European Data Protection Board in May 2020 published Guidelines 05/2020 on consent under Regulation 2016/679 (EN) and in April 2021 Guidelines 8/2020 on the targeting of social media users (EN);
• Bird&Bird's Winter 2022 Global Cookies Review includes Poland in its pages; the section include the ins and outs of consent rules, some case law, and explanation of stances taken by the market regulators

• Code of Ethics Polish Direct Marketing Association (SMB) PO / EN (Chapter VI: e-Commerce; s. 37.4). Section 37 Online transaction security. Point 4: Traders should provide customers with information which does not contain any complicated technical jargon, referring to all the technologies of collecting and searching data, not allowing the identification of specific individuals, e.g. use of cookies. Traders using technology of cookie type will notify the customers about the purpose of its use

APPLICABLE LEGISLATION AND AUTHORITIES

• Telecommunications Act PO / EN (Art. 173 paras 1-3 implements the Cookie Directive 2009/136/EC via amendment article 1 (122) of the Act of 16 November 2012 
• Regulatory authority: Office of Electronic Communications UKE (Art. 209 (1.25) and 210 (1) TA) and General Inspector for Personal Data Protection UODO (Urzędu Ochrony Danych Osobowych, Office for the Protection of Personal data)
• Polish SA imposed fine on telecom operator for failure to notify the personal data breach. Jan 2023 (EN)

SECTION C: COOKIES AND OBA

Privacy Sandbox next steps. May 18, 2023

Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023

EDPB Decisions on Facebook and Instagram re 'contractual necessity.' Van Bael and Bellis/ Lex. Feb 2023

Report of the work undertaken by the Cookie Banner Taskforce. (EN) From the EDPB Jan 2023

Guidance extracted from the above here courtesy of Stevens & Bolton LLP/ Lex

Cookies: A Comparison Chart of International Requirements (Belgium, China, France, Germany, Greece, Singapore, United Kingdom, USA)

From Reed Smith LLP/ Lex May 2022 

End of Meta’s targeted ads model? DLA Piper December 9, 2022. Reports on some critical EDPB decisions

Applicable legislation, self-regulation and guidance 

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

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

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

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

• And in July 2021 the Guide to Contextual Advertising

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

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

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

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

Our definition of electronic direct marketing for this context is here

• The marcoms content rules set out in our earlier section B - both the child-specific and the general rules - apply to commercial electronic communications, with the exception of those rules that specify broadcast channels; the principal set of general rules is the RR Code of Ethics in Advertising which applies to all sectors and media; see the articles 22-32 especially for requirements when communicating to/ seen by children
• The Channel (i.e. placement) rules for all product categories and audiences also apply; see the General tab below. The Polish regime, along with most, operates an opt-In/ soft opt-in system; in other words, consent must be obtained before sending an electronic communication unless it relates to similar products to those already purchased by the recipient, and it must contain a simple and no-cost means to opt-out

• The Law on Providing Services by Electronic Means (EN key clauses) 2002 implements the e-Commerce Directive 2000/31/EC and elements of the e-Privacy Directive 2002/58/EC. No specific requirements related to children. Full provisions under the General tab below, as they apply to all audiences and sectors 
• If data processing for email communications involves personal data (that which identifies individuals), lawful processing rules from the GDPR may apply. Regarding consent rules for children, these are spelt out under our earlier online commercial communications section. In short, if the child is under 16, parental or guardian authorisation of consent is required (Articles 8 and 12 of the GDPR). Best guideline for consent is here; see section 7.1 for Children
• The Law on Counteracting Unfair Commercial Practices (EN inc. 2022 amends) article 9 (5). Prohibited is Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them

• Advertisers in child-sensitive sectors such as alcohol and gambling are required to avoid email communication with children/ young people
• The ICC Advertising and Marketing Communications Code carries child protection measures in article 19.4 of the general provisions and for additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7

See the earlier section online commercial communications for child-related rules

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

APPLICABLE SELF-REGULATION 

• Rada Reklamy Code of Ethics in Advertising PO / EN applies to advertising as defined under article 3 and incorporates Chapter VII Direct Marketing 
• Code of Ethics Polish Direct Marketing Association SMB PO / EN (Chapter VI: e-Commerce; s. 37.1 in Polish version, 38.1 in English version; new email section 33 here)
• Code of Good Practice in Mobile Advertising PO / EN from mobile operators Polska Telefonia Cyfrowa, Polkomtel, Orange and P4, in conjunction with IAB Poland

​

APPLICABLE LEGISLATION 

• The Act on the Provision of Services by Electronic Means (PSEM) PO / EN (articles 4-10) transposes implements elements of the e-Commerce 2000/31/EC and e-Privacy 2002/58/EC Directives
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lex here 
• The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) applies to B2C commercial practices; includes e.g. misleadingness rules and 'Invitation to purchase' requirements as well as an 'intrusion' clause under article 9. Transposes UCPD 2005/29/EC
• GDPR 2016/679: if data processing identifies individuals, then GDPR lawful processing rules may apply. Privacy issues should be reviewed with specialist advisors
• The Personal Data Protection Act of May 10th 2018 PO / EN (link temporarily bust) implements/ recognises the GDPR and its accompanying Directive 2016/680. GDPR applies directly in all member states

SOME EDPB GUIDANCE

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

KEY CLAUSES LEGISLATION 

B2C: Opt-in regime

• Direct marketing by email is permitted if the recipient has given his/ her prior consent to receiving such emails, in particular, by disclosing his/ her email address for that purpose (Art. 10 (1)/(2) PSEM)
• Consent cannot be presumed or implied and can be revoked at any time. The sender must also be able to provide proof of consent (Art. 4 PSEM)
• Making persistent and unwanted solicitations by email is considered an aggressive thus unfair commercial practice under article 9 (3) UCPA, confirmed by article 10.3 PSEM

• As Direct email will frequently include offers, information requirements from the UCPA when making an ‘Invitation to purchase' are extracted here
• All marketing communications/ advertising content in direct electronic media  is subject to the UCPA rules on unfair commercial practices, especially in this context misleading or unfair actions or omissions shown under articles 5, 6 and 7 of the Act linked again here 

The sender must provide the recipient with (Art. 5.2 PSEM):

• His/ her electronic email addresses
• His/ her name, surname, a place of residence and an address, or its name or a firm, headquarters and address

The sender must also clearly identify (Art. 9.1 & 9.2(1-3) PSEM)

• The commercial communication as such; it must be clearly defined and marked in a manner that doesn’t leave any doubt that it is a commercial communication
• The entity on behalf of whom the commercial communication is made, providing name and email addresses
• Promotional offers and activities (in particular price reductions), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the conditions for participation
• Any other information which may have an impact on the extent of liability of the parties, in particular, warnings and restrictions

B2B: Provisions from PSEM above on direct marketing by e-mail are not applicable to corporate subscribers. Article 10 only applies to 'natural persons'. Opt-in applies for email addresses which clearly identify an individual (e.g. tim.burton@wikiregs.com). However, for generic email addresses (info@wikiregs.com), opt-out principle will apply (source: FEDMA)

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (full Code linked above): Direct Marketing and Digital Marketing Communications
• General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
• Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
• Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
• GDPR may apply if processing personal data; check privacy issues with specialist advisors 
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

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

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

19.1. Collection of data and notice

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

19.2. Use of data

Personal data should be:

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

19.3. Security of processing

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

19.4. Children’s personal data

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

19.5. Privacy policy

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

19.6. Rights of the consumer

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

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

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

19.7. Cross-border transactions

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

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

SECTION C: MARKETERS' OWN WEBSITES

Including social network spaces under brand control

These spaces are in remit in Poland; that means that marketers’ own advertising/ marketing communications on their own websites are subject to industry (and statutory) regulation. Advertising is defined in article 3 of the RR Code of Ethics in Advertising, which article includes some exemptions

• Advertising to children should observe the general content rules, i.e. those that apply to all audiences and categories, as well as those specific to children set out in the earlier content section B, except those rules that identify broadcast channels. Principal source of rules is the RR Code of Ethics in Advertising; in legislation, the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) applies
• General channel (i.e. placement) rules are shown below under the General tab, and include e.g. exemptions for user-generated content, and rules for 'Information Society Services’ from the Law on Providing Services by Electronic Means (EN key clauses) 2002

• If data processing involves personal data (that which identifies individuals), lawful processing rules from the GDPR may apply. Regarding consent rules, and other lawful processing scenarios, for children under GDPR, these are spelt out under our earlier online commercial communications section. In short re consent, if the child is under 16, parental or guardian authorisation is required (articles 8 and 12 of the GDPR). Best guideline for consent is here; see section 7.1 relating to children

• in some cases, this kind of communication originally can come from consumers, i.e. it’s user-generated content. If it stays as (genuine) user material, it’s not subject to the rules. If the material is originated or endorsed by the marketer and it’s advertising then it’s in remit, i.e. covered by the rules
• The definition of commercial practices/ advertising in the law is: “commercial practices…..shall be understood as a trader's act or omission, course of conduct, commercial statement or information, in particular advertising and marketing, which are directly associated with the promotion or purchase of a product by a consumer” (the Law on Counteracting Unfair Commercial Practices PO / EN (art 2.4)) See also the RR definition referenced in the above introduction to this section
• Particular care might be taken when going or attempting to go viral in the forwarding of material that may be sensitive if it may go to a young connection or friend. There is, however, no general requirement, as there can be with Alcohol communications, for example, to include warning messages with material that is forwarded, though it must be clear that the content is commercial and who it’s from (the Law on Providing Services by Electronic Means 2002)
• The provision of a friend’s email address by a site user does not constitute consent to use of that address for marketing purposes; GDPR lawful processing rules apply if the ‘data’ (i.e. in this context an email address) is processed and the address identifies the individual. if an email is (lawfully) sent, then the Law on Providing Services by Electronic Means applies, meaning that the sender’s identity and address and that this is a commercial communication must be made clear
• Advertisers in child-sensitive sectors are generally required to restrict access to their websites via age restriction mechanisms, and all advertisers are required to exercise caution in the way in which they communicate with children in this environment (arts. 18 and 19 ICC Code)

See rules from our earlier online commercial communications header

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. Advertising is defined in the applicable RR Code of Ethics in Advertising (EN) as a ‘message …. which aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below. Issues 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.

APPLICABLE LEGISLATION

• If processing personal data, lawful processing rules from the GDPR may apply 
• Cookies: Telecommunications Act PO / EN (Art. 173 paras 1-3 implements the Cookie Directive 2009/136/EC via amendment article 1 (122) of the Act of 16 November 2012 
• e-Commerce: the Act on the Provision of Services by Electronic Means (PSEM) PO / EN (Arts. 9.1/ 9.2)
• As with all media, that which qualifies as advertising on Marketers' Own Websites will also be subject to The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends), which implements the UCP Directive 2005/29/EC and applies to B2C practices; in December 2022 the law was amended to incorporate provisions from the Omnibus Directive 2019/2161 which include inter alia new requirements on search rankings and consumer reviews. See articles 5, 6 and 7 of the laws linked above where new provisions in the English version are italicised
• The Unfair Competition Act UCA PO / EN (note on translation here) protects businesses from acts of unfair competition (art. 3.1), implementing the Misleading and Comparative Advertising Directive 2006/114/EC
• The Broadcasting act was amended by the act of August 11th 2021 (PO) that transposed Directive 2018/1808; the Directive extends AVMSD rules online and in particular to video-sharing platforms: platforms must identify to users commercial communications in posts where known, and require the same of contributors. Content rules are essentially unchanged and shown for the Directive here

​

APPLICABLE SELF-REGULATION 

• Content rules, principally from the Rada Reklamy Code of Ethics in Advertising, will apply when messaging qualifies as advertising; see definition above in the introduction. Other content rules from section B will also apply 
• Code of Ethics of the Polish Direct Marketing Association (SMB) PO / EN (Chapter VI: e-Commerce; s. 35 in Polish version: Information about the Trader; s. 37 in Polish version: Commercial Communication
• EASA’s Best Practice Recommendation Digital Marketing Communications establishes some exemptions in this context, such as User-generated Content (unless endorsed by the marketer), under Section 2 of the linked document
• 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

EDPB GUIDANCE 

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

KEY CLAUSES SELF-REGULATION

A significant issue in online’s less structured environment is the identification of advertising, especially in the context of Influencer marketing hence in this case extracting recognisability rules as well as the core misleadingness provision

• Advertiser, promoter, operator and media, each of them only within the scope of its advertising-related activities, will obey the rule, that every recipient of advertising made or distributed with his participation should be able to identify, that particular message is an advertisement (Art. 9)
• 1. Advertisements should not mislead their recipients, in particular with regard to: a) important characteristics such as nature, composition, method and date of manufacture, range of use, quantity, origin (also geographical) of the advertised item; b) value of the product and the total price actually to be paid for the product as well as other payment conditions like instalment sales, leasing, credit sales, bargain sales; c) terms of delivery, exchange, return, repair and maintenance; d) guarantee terms; e) intellectual and industrial property rights such in particular patents, names, trademarks, and industrial designs and models f) official permits or approvals, awards, prizes, medals, and diplomas; g) the extent of the entrepreneur’s benefits for charitable causes. 2. Data as well as scientific terms, quotations from technical or scientific publications not considered data within the meaning of the Code, used in advertisements, must indicate their source and cannot be used in a misleading manner. The data must be presented correctly from the methodological point of view. Presentation of statistical data must in particular take into account the rules of statistical inference, including the phenomenon of statistical error

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

ICC Advertising and Marketing Communications Code Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2015

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

SECTION C: NATIVE ADVERTISING

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules. ‘Native’ advertising aimed at children does not attract rules specific to the technique and audience but will be particularly sensitive for obvious reasons.  The key issue, obviously, is that of advertising identifiability. Native advertising, like any other advertising, is also subject to the rules spelt out in our earlier Content Section B

• Native advertising is the same as any other advertising in as much as content and channel rules apply; so the children’s and general content rules set out in section B apply to native advertising
• The RR Code of Ethics in Advertising (EN) key article in this context is article 9: ‘Advertiser, promoter, operator and media, each of them only within the scope of its advertising-related activities, will obey the rule, that every recipient of advertising made or distributed with his participation should be able to identify, that particular message is an advertisement.’
• All of the channel (i.e. placement) rules shown under the General tab below also apply to children’s marketing communications in native guise; these include notably the ICC Guidance on Native Advertising
• Legislation is also applicable; see the UCPD ‘blacklist’ and misleading omission rules below under the General tab as they apply to all product categories/ audiences 
• While it does not appear to be specifically transposed under the national Law on Counteracting Unfair Commercial Practices (EN key clauses), the UCPD linked above carries a significant provision under article 5 that is relevant to children’s marcoms and native advertising: ‘considered unfair is .....  Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee’. Italics ours

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. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue for this technique, obviously, is that of advertising identifiability. Native advertising, like any other advertising, is also subject to the rules set out in our content section B

APPLICABLE SELF-REGULATION 

• The Rada Reklamy Code of Ethics in Advertising (EN) applies to advertising content as defined and incorporates an identification rule set out below  
• The ICC’s Guidance on Native Advertising (EN). The guidance is based on the ICC Code article 9 Identification
• Code of Good Practice of Press Publishers PO / EN (Section 4) from the Polish Chamber of Press Publishers Izba Wydawców Prasy (IWP). Extracts below

APPLICABLE LEGISLATION 

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• The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends), which implements the UCP Directive 2005/29/EC and applies to B2C practices; the UCPA carries a number of rules on advertising identification; see below 
• The Unfair Competition Act UCA PO / EN; note on translation here. See relevant article 16 below 
• If 'Native' advertising stretches to video-sharing platforms, which it may, the Broadcasting Act amends of 11th August 2021, transposing Directive 2018/1808, require identification of commercial communications by the platform and by the contributor

KEY CLAUSES SELF-REGULATION

• Advertiser, promoter, operator and media, each of them only within the scope of its advertising-related activities, will obey the rule, that every recipient of advertising made or distributed with his participation should be able to identify, that a particular message is an advertisement (Art. 9 RR Code)
• Article 9 Identification from the ICC Code: ‘Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and the identity of the advertiser should be apparent (see also article 10). Marketing communications should not misrepresent their true commercial purpose. Hence a marketing communication promoting the sale of a product should not be disguised by the marketer or sponsor as, for example, market research, consumer surveys, user-generated content, private blogs or independent reviews.' 
• Hidden advertisements, including product placement, shall be forbidden (4.1.10 IWP)
• The boundary between advertising material and editorial content shall not be blurred. The form of advertising materials and publications must be such as to make their nature of advertisement or announcement obvious to the reader. Advertising materials and announcements must be clearly set apart from editorial content by graphic elements or a different typeset and labelled as ‘advertisement’ (reklama), ‘promotion’ (promocja), ‘announcement’ (ogłoszenie), ‘sponsored text’ (tekst sponsorowany) or the like, making the nature and origin of such materials obvious to the reader. In particular, any advertisements and announcements that are intended to imitate or use editorial content or the publication’s graphic layout must be rejected (Rule 4.2.2 IWP)
• Neither the name nor the logo of an advertiser or announcer may be used on any of the pages devoted to editorial content unless they are labelled as an advertisement (reklamą) or announcement (ogłoszeniem). An advertiser or announcer whose logo has been placed on a page with editorial content may not have any influence on editorial content. Moreover, an advertiser or announcer’s name or logo may be placed on a page with editorial content in connection with the preparation of events under the publication’s patronage or the financing of prizes in a competition organised by an editorial office or a publisher; the advertiser or announcer must be identified as the sponsor (Rule 4.2.3)
• See rules 4.3.1/2 for Advertising Supplements conditions

KEY CLAUSES LEGISLATION

• A commercial practice will be regarded as misleading by omission if it omits material information that the average consumer needs to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise (Art. 6.1 UCPA)
• In particular, the following practice may be regarded as a misleading omission: Failing to disclose the commercial purpose of the practice (italics ours) if this is not clearly apparent from the circumstances and if this causes or may cause the average consumer to take a contractual decision which he/ she otherwise would not have taken (Art. 6.3 (2) UCPA)
• When assessing whether a market practice is misleading by omission all its features and circumstances related to the product launch, including its overall presentation, should be taken into account (Art. 6.5 UCPA)
• The following misleading commercial practice constitutes an unfair commercial practice in all circumstances: Advertorial, which involves using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (Art. 7.11 UCPA)
• Applicable B2B: In the field of advertising an act of unfair competition shall be, in particular, the following: Statement encouraging the purchase of products or services by creating the impression of being impartial/ neutral information (Art. 16.1.4 UCA)

SECTION C: NATIVE ADVERTISING

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

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

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

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

Identification and transparency (Art. 7)

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

Identity of the marketer (Art. 8)

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

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

Commercial practices which are in all circumstances considered unfair

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

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

Following feedback, we no longer cover Telemarketing 

FOLLOWING FEEDBACK, WE NO LONGER COVER TELEMARKETING

Following feedback, we no longer cover Telemarketing 

SECTION C: DIRECT POSTAL MAIL

• Direct postal mail is subject to the Content rules set out in our Section B; both the child-specific and the general rules shown under the General tab. Principal source of rules is the RR Code of Ethics in Advertising (EN), in particular articles 22-32 on rules for children’s marcoms; in legislation, the Law on Counteracting Unfair Commercial Practices (EN key clauses)
• There are no statutory or self-regulatory rules specific to direct mail communications to children. The general channel rules set out below under the General tab will apply, however, as they apply to all audiences and product categories. These rules include e.g. the requirement to respect the opt-out register: direct mail in most countries, Poland included, is based on opt-out consent
• Key legislation in the context of data processing in direct mail is the GDPR if processing personal data (that which can identify an individual). Rules relating to children’s personal data are set out under our earlier online commercial communications section. In short re consent (if consent is the basis for lawful processing), if the child is under 16, parental or guardian authorisation is required (articles 8 and 12 of the GDPR). Best guideline for consent is here; see section 7.1 relating to children
• Unaddressed mail is unlikely to be regarded as personal data (Article 4. 1. GDPR: ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.’) Implication is that unaddressed mail to businesses or individual households is permitted, though content remains subject to the rules set out in our section B

SECTION C: DIRECT POSTAL MAIL

Consumer protection before mail is sent is from two main sources: 1) the rules on the processing of personal data (i.e. data that can identify an individual) in order to send marketing communications, and 2) the ‘Robinson list’ or equivalent, i.e. an opt-out list of people who do not wish to receive marcoms; see below. Privacy issues should be reviewed with specialist advisors

APPLICABLE LEGISLATION

• The Personal Data Protection Act of May 10th 2018 PO / EN (link temporarily bust) transposes elements of GDPR and its accompanying Directive 2016/680 
• The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) applies to B2C commercial practices and includes e.g. misleadingness rules and 'Invitation to purchase' requirements. Transposes the Unfair Commercial Practices Directive 2005/29/EC
• The Unfair Competition Act UCA PO / EN; note on translation here, applies in B2B and in this context mainly relates to comparative advertising. Transposes the Misleading and Comparative Advertising Directive MACAD 2006/114/EC

APPLICABLE SELF-REGULATION 

• Rada Reklamy Code of Ethics in Advertising PO / EN applies to advertising content as defined and incorporates specific direct marketing rules; relevant article 47, applicable to B2C and B2B
• Content of direct postal mail commercial communications must observe the rules set out in our earlier content section B, except those specific to broadcast media. The principal source of rules is the RR code linked above
• SMB (Polish Marketing Association) Code of Conduct PO. The Robinson List (opt-out register) includes postal mail. Members of SMB must consult this list prior to sending direct mail marketing

KEY CLAUSES SELF-REGULATION

• All marketing communications/ advertising content in Direct Postal Mail is subject to the Rada Reklamy Code of Ethics in Advertising. The core rules are shown under Chapter III Basic Principles of Advertising; Direct Marketing under Chapter VII
• Direct marketing communications must respect the privacy of the recipient (Art. 47.1 RR Code)
• If personal data is collected for the purposes of direct marketing, the recipient must be clearly informed of this fact and provided with an indication of the scope of processing of such data. The collection, storage, and use of data must be compliant with the Personal Data Protection Act/ GDPR (Art. 47.2 RR Code)
• However direct marketing communications are sent (i.e. by email, SMS/ MMS, addressed/ non addressed postal mail, fax, telephone, other means of addressed online communications), the recipient must be able to verify the sender of such a marcom and where applicable, the source by which the sender obtained the recipient’s data (Art. 47.3 RR Code)
• The marketer must comply with the recipient’s demands if they do not wish to receive DM communications, however sent. The recipient may send their request for DM communications to cease directly to the marketer or by registering on an appropriate preference list (Art. 47.4 RR Code) or by displaying information about such a request at the place of delivery of mail (i.e. on a postbox)
• SMB Code: All commercial communications should be easily recognisable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable (s. 37 (1) SMB Code)
• The Robinson List is only binding on members of the Direct Marketing Association (SMB); it is a condition of membership to observe the Robinson List Regulations (s. 1 (2) SMB Code). SMB makes its Robinson List available to other entities interested in joining the system on a voluntary basis

KEY CLAUSES LEGISLATION 

• Applicable B2C: making persistent and unwanted solicitations by telephone, fax, email or other remote media to persuade consumers to purchase goods is considered an aggressive commercial practice under Art. 9 (3) UCPA (EN)
• As direct mail will frequently include offers, information requirements from the UCPA when making an ‘Invitation to purchase' are extracted here (EN)
• All marketing communications/ advertising content in direct postal mail is subject to the UCPA rules on unfair commercial practices, especially in this context misleading or unfair actions or omissions shown under articles 5, 6 and 7 of the act linked again here (EN)
• The Unfair Competition Act (EN) is most relevant in this context to rules on comparative advertising; see article 16 of the UCA

Applicable Self-Regulation and legislation 

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

Standard rules

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

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

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SECTION C: EVENTS/ SPONSORSHIP

• For associated print or other forms of material supporting the sponsorship of an event, the Content rules set out in our section B apply; both the child-specific and the general rules shown under the General tab in content section B. Principal source of rules is the RR Code of Ethics in Advertising  (EN). In legislation, the Law on Counteracting Unfair Commercial Practices (EN key clauses)
• From the above linked RR code, article 31: Sales promotion, direct marketing, or sponsored events addressed to children or young people must be consistent with the respective principles stipulated in the code, and in particular with the provisions of this chapter (note: “this chapter” is Chapter IV, Advertisement addressed to Children and Young People)
• Article 32: articles 22-31 apply accordingly also to advertisements, which are not directly targeted at children, but children are their recipients due to the form, place and method of presentation. This applies particularly to advertisements broadcasted close to children’s programming, advertisements shown in cinemas before children’s movies and to outdoor advertising
• Child-sensitive sectors such as alcohol and gambling are required to avoid events where there is a relatively high proportion of children/ minors; guidance (from RR) in Poland is 35%+
• Advertising of food products may not be conducted in any form in elementary school article 4 Standards of Food Advertising Aimed at Children Under 12; RR Code of Ethics in Advertising
• General sponsorship rules according to the ICC (the International Chamber of Commerce, whose code underpins much of self-regulation worldwide) are under chapter B of the ICC Advertising and Marketing Communications Code; provisions are shown below under the General tab as they apply to all product categories and audiences, children included 

SECTION C: EVENTS/ SPONSORSHIP

APPLICABLE REGULATION 

• Rada Reklamy Code of Ethics in Advertising: PO / EN; Sponsorship Chapter VI articles 40-44
• Sponsorship material is within the scope of the RR Code linked above; material would therefore need to observe the full code, as well as the specifics in the sponsorship section set out below
• The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends), which implements the UCP Directive 2005/29/EC applies to B2C practices (art. 2/4 for scope, which suggests that sponsorship material would be covered)
• The Unfair Competition Act UCA PO / EN (note on translation here) protects businesses from acts of unfair competition (art. 3.1), implementing the Misleading and Comparative Advertising Directive 2006/114/EC. 'The act of unfair competition shall be the activity contrary to the law or good practices which threatens or infringes the interest of another entrepreneur or customer.' (Art. 3.1)
• The ICC Advertising and Marketing Communications Code, foundation of self-regulation worldwide, carries a full Chapter B on event sponsorship

Rada Reklamy Code of Ethics Chapter VI Sponsorship

• Sponsorship and sponsorship-related agreements must be performed in the manner which is easy to be read and understood by unrelated persons as to their nature, and in particular they should indicate all the interested parties and the content of their liabilities to the sponsor (Art. 40)
• Information on sponsorship originating from the sponsor or the sponsored of the given event must be clearly formulated and cannot violate the prevailing standards of decency (Art. 41)
• Sponsorship should never be operated in such a way as to endanger artistic or historical objects (Art. 42)
• Sponsorship-related operations cannot be misleading as to the sponsored entity, brand or other identification of the sponsored, in particular where the sponsored event is presented on the radio or television (Art. 43)
• The sponsored event cannot have a negative impact on natural environment. Therefore, any message coming from the sponsored person or the sponsor, and related to environmental protection should be truthful (Art. 44)

Self-Regulation

• Advertising material associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier Content Section B, or from the ICC Code linked below 
• ICC Advertising and Marketing Communications Code 2018: Chapter B Sponsorship

B1: Principles governing sponsorship

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

B2: Autonomy and self-determination

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

B3: Imitation and confusion

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

SECTION C: SALES PROMOTIONS

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

• Marketing communications for sales promotions aimed at children should observe the content rules set out in our section B, both the child-specific rules and the general rules for all audiences and sectors shown under the General tab in section B
• The principal source of rules is the RR Code of Ethics in Advertising (EN); in legislation, the Law on Counteracting Unfair Commercial Practices (EN key clauses)
• The channel i.e. placement) rules set out below under the General tab include, e.g. promotional pricing rules that apply to all product categories and audiences, children included

• The RR Code of Ethics in Advertising (EN) includes a section on sales promotions, applicable to all audiences and therefore shown in full under the General tab below
• From that code: ‘Sales promotion, direct marketing, or sponsored events addressed to children and / or young people must be consistent with the respective principles stipulated in the code, and in particular with the provisions of this chapter (Art. 31); “this chapter” is Chapter IV, advertisement addressed to children and young people
• The ICC Advertising and Marketing Communications Code includes chapter A on sales promotions

Relevant extract from linked code

Premiums should be used and presented responsibly. There should be no sales pressure

Relevant extracts from RR Code of Ethics in Advertising, Appendix 2

• Advertising of food products may not be conducted in any form in elementary schools (Art.4)
• Advertising of food products may not (Art.5):

1. Encourage or condone unhealthy dietary habits or unhealthy lifestyle i.e. immoderate, excessive or forced consumption or promote sedentary lifestyle
2. Contain direct call to purchase advertised products by using phrases such as 'buy now' (kup teraz), 'must have it' (musisz to mieć)
3. Contain direct appeal to children to persuade parents to buy advertised products

Child-specific

• As, by definition, promotional marketing can be more 'urgent', note that legislation in the form of The Unfair Commercial Practices Act (EN) provides under Article 9 (5): Prohibited is Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them

Other legislation

• Act on the provision of services by electronic means PO / EN; Art. 9.2.2 re online promotions
• The Gambling Act of 19 November 2009 PO / EN relevant to a prize draw (promotional lottery) where participation in the promotion is conditional on the purchase of goods, services or another game ticket; rules below under the General tab as they are not child-specific

SECTION C: SALES PROMOTIONS

Permanent promotions mislead consumers, says Poland's consumer protection watchdog
Osborne Clarke/ Lex. April 4, 2023

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. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. 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 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 checked with specialist advisors

APPLICABLE SELF-REGULATION

• Rada Reklamy Code of Ethics in Advertising PO / EN Chapter VIII Sales Promotion (Arts 49-61)
• SMB (Polish Direct Marketing Association) Code of Ethics PO / EN (s. 14) promotion and advertising, Chap. III Mail Order and Catalogue Selling

​

APPLICABLE LEGISLATION

• The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) applies B2C; covers forms of promotional marcoms under arts 7.19, 7.20, and 9.8. This law transposes the Unfair Commercial Practices Directive 2005/29/EC
• The Unfair Competition Act UCA PO / EN (Art. 17a (1&2) UCA) similarly, the UCA addresses some promotional techniques under article 17a. This act transposes the Misleading and Comparative Advertising Directive 2006/114/EC
• Act on the Provision of Services by Electronic Means PO / EN (Art. 9.2.2  promotional conditions in e-commerce context; see below)
• The Gambling Act of 19 November 2009 PO / EN (key clauses only; unofficial translation) relevant to a prize draw/ promotional lottery where participation in the promotion is conditional on the purchase of goods, services or another game ticket

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

ICC Advertising and Marketing Communications Code 2018, Chapter A Sales Promotion, Chapter C Direct Marketing

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

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

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

ICC Code Chapter A Sales Promotion 

A1: Principles governing sales promotions

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