SECTION C TV/AV AND RADIO

• The content rules for Food and Soft Drinks in section B above, together with the general content rules for all product sectors, apply to this channel except where indicated. The principal source of general content rules is the Code of Advertising Practice (EN)
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
• The channel (i.e. placement) rules that apply to all product sectors, Food and Soft Drinks included, e.g. rules for sponsorship and for product placement, are set out under the General tab below 
• The General AV Law 13/2022 ES / EN (key clauses inc. 2022 amends) carries under article 124 rules related to the protection of children and with reference to foods 'for which an excessive intake in the total diet is not recommended'; scope of the law includes broadcast and VOD and is extended to video-sharing platforms following amends to the AVMS Directive by Directive 2018/1808

• There are some significant rules for food and drink marcoms to young people that are in Content Section B, especially those relating to the use of characters, real or fictitious (see article 14). The rules apply to all forms of commercial communications on television, including sponsorship, product placement and telepromotions 
• All advertising directed to children up to 12 and all TV advertising scheduled for broadcast in the ‘Children protected viewing times’ (8:00-9:00 and 17:00-20:00 on working days and 9:00-12:00 on weekends and national bank holidays) must be sent to Autocontrol’s technical office for prior review (PAOS Code)
• Copy Advice from Autocontrol can be requested by non-members (of PAOS): advertisers, their agencies, or the media where the advertising is planned for publication or broadcast

See the Implementation Guidance Note pt. 3 Television and Radio and pt. 9 product placement;

Commitments enhanced July 2021, effective January 2022

SECTION C: TV & RADIO/ AV

APPLICABLE LEGISLATION

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

Register for AV Service Providers. GALA Jan 8, 2024

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

STANDARD RULES 

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

PROHIBITIONS

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

SECTION C TV/AV AND RADIO

EASA Jan 2024 update on the AVMSD

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

• The Content rules in our Section B above apply to the Cinema channel, as do the General content rules set out below the sector-specific rules. The principal source of General content rules is the Autocontrol Code of Advertising Practice (EN)
• Note that the Channel (i.e. placement) rules set out here are specific to the Food and Soft Drinks sector; the channel rules that apply to all sectors, found under the General tab below, also apply
• EU Pledge Implementation Guidance for Cinema and for movies on DVD/ CD-ROM under pt. 6; Commitments enhanced July 2021, effective January 2022

• No rules from authorities for the Food and Soft Drinks category that apply specifically to print advertising; rules set out in Content Section B apply in press and magazines (except those for audiovisual media under pt. 2)
• General content rules, i.e. those for all sectors Food included, also apply. The principal source of General content rules is the Autocontrol Code of Advertising Practice (EN)
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
• EU Pledge Implementation Guidance pt. 4 for Print (and third party Internet); commitments enhanced July 2021, effective January 2022

• Food and Soft Drink advertising cannot appear in schools and kindergartens; promotions or campaigns may only be carried out in schools when the education authorities in coordination with health authorities agree that the activity is beneficial to children’s interests (Art. 40.7 Law 17/2011)
• No communication related to products in basic primary schools, except where specifically requested by, or agreed with, the school administration for educational purposes (from the EU Pledge)
• The Content rules in our Section B above apply to the Outdoor channel, as do the General content rules set out below the sector-specific rules.  The principal source of General content rules is the Autocontrol Code of Advertising Practice (EN)

SECTION C: CINEMA, PRINT, OUTDOOR

CINEMA

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

Special rules

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

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

Advertising of alcoholic beverages (Art. 7)

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

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

OUTDOOR

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

In the context of roadside static advertising:
 

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

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

Autonomous regional legislation

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

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

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable self-regulation and legislation 

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), 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 sets out the broad rules for the online environment generally. Below this, more specific channels are covered such as email, social networks, own websites and sponsorship

• Food and Soft Drink marcoms online don’t attract rules specific to the sector, though the PAOS Code (EN) does set out some Data Protection rules in their articles 24 to 28. These are shown under the Cookies/ OBA section below. If advertising is placed on a website or a section of a website where more than 50% of its audience are children under 15 years of age, then it meets one of the criteria that require those adhering to the PAOS Code to meet its rules (the other criteria are to do with type of product/ design of the advertisement)
• The content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, online included, except where indicated, as do the General content rules set out below the Sector-specific rules. The principal source of General content rules is the Autocontrol Code of Advertising Practice (EN)
• The General AV Law 13/2022 ES / EN (key clauses inc. 2022 amends) carries under article 124 rules related to the protection of children and with reference to foods 'for which an excessive intake in the total diet is not recommended'; scope of the law includes VOD and is extended to video-sharing platforms following amends to the AVMS Directive by Directive 2018/1808
• Note that the Channel (i.e. placement) rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory Consent and Information requirements as well as the self-regulatory Confianza Online Ethical Code (COEC), updated February 2022 ES / EN key clauses; the code applies to ‘electronic distance media’ and covers e.g. data protection, e-commerce, protection of minors and digital advertising  
• Additionally, Autocontrol published in October 2020 the Code of Conduct on the Use of Influencers in Advertising (ES), in force January 2021. There’s an unofficial GRS translation into English here. While the Code applies to all sectors, because Food and Soft Drinks may be active in this channel/ technique, we highlight it here. The Code defines when Influencer advertising qualifies as such and sets out identification requirements

• The EU Pledge states: no advertising of food and soft drink products to children under 13, except for products which fulfil nutrition criteria 
• Covered media includes company-owned websites and social media profiles, DVD/CD-ROM, direct marketing, influencer marketing, interactive games, mobile and SMS marketing
• Implementation Guidance from the EU Pledge on (print and) third party Internet advertising is under pt. 4, Influencer marketing pt. 10 
• Commitments enhanced July 2021, effective January 2022

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

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

CONTEXT

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

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

KEY RULES

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

APPLICABLE LEGISLATION 

Non-exhaustive

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

SELF-REGULATION 

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

INTERNATIONAL/ GUIDELINES 

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

e-Commerce information requirements (from legislation)

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

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Meta and self-regulation December 2023 

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

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

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

Logan & partners/ Mondaq November 28, 2023

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

• Directive 2000/31/EC on electronic commerce

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

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

Also be aware of:

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

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

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

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

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

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

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

C1. Identification and transparency

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

C2. Identity of the marketer

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

SECTION C: COOKIES AND OBA

• The cookie rules that apply to all product sectors, Food and Soft Drinks included, are shown under the General tab below; these include statutory Consent and Information requirements 
• The deployment of cookies that direct advertising to users under 15 may be subject in spirit to the rules of the PAOS Code. Data Processing rules from the Code are shown below
• Content in Online Behavioural Advertising is subject to the same rules as any other online advertising, so the rules in Section B above apply to OBA - both the sector-specific rules and the General rules that apply to all product sectors. The principal source of General content rules is the Autocontrol Code of Advertising Practice (EN)

• Member companies must establish reasonable mechanisms to ensure that children under 14 have obtained the consent of their parents or guardians before providing personal data (including photos and videos with their image and/ or voice) in accordance with the provisions of Law 15/1999 on the Protection of Personal Data, and Royal Decree 1720/2007 (Art. 24) Note:  Since May 2018, the processing of personal data is subject to the GDPR. Refer to the General tab below for more information. Privacy matters should be reviewed by your/ your client’s lawyers
• Re above, the self-regulatory Confianza Online Ethical Code (COEC), updated February 2022 ES / EN key clauses, may be a better self-regulatory source. The code applies to ‘electronic distance media’ and covers e.g. data protection, e-commerce, protection of minors (including a GDPR-based section on processing data) and digital advertising  
• Parents or guardians may oppose the forwarding of advertising or information requested by children under 14 years in their care, by contacting the webmaster through a system that ensures their identity (Art. 25)
• Adhering companies must limit the use of data provided by children under 14 years only to the purpose of promotion, sale and supply of products or services clearly suitable for children (Art. 26)
• Under no circumstances may any adhering company transfer data regarding children under 14 without the prior consent of their parents or tutors, and they shall write the terms of such request in a way that can be easily understood by this age group (Art. 27)
• Adhering companies, through their websites directed to children under 14, must offer parents or tutors information on how they can protect the privacy of their children or wards online, providing the necessary mechanisms to exercise access, rectification, cancellation and determination rights on the final use of the children’s data (Art. 28)

SECTION C: COOKIES AND OBA

COOKIES

New guidance on analytic cookies - is consent always required? (EN)
Hogan Lovells January 16, 2024. Guidance here (ES)

AEPD updates its Cookie Guide (ES). July 11, 2023

The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 

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

Privacy Sandbox next steps. May 18, 2023

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

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

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

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

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

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

OBA

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising

William Fry/ Lex September 8, 2023

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023

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

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

Effective 19th January 2022

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

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

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

SECTION C: COOKIES AND OBA

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

Campaign Asia February 29, 2024

Consent Rules Apply to Broader Range of Tracking Technologies

McDermott Will &Emery January 18, 2024

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

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

Guidelines here. This is re technical scope 

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

Reed Smith LLP/ Lex November 8, 2023

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

Covers interplay between the AI act, the DSA and GDPR 

Files prior to the above date here 

Applicable legislation, self-regulation and guidance 

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

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

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

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

• And in July 2021 the Guide to Contextual Advertising

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

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

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

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

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• The content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, except where indicated, as do the General rules for all product sectors
• The principal source of General Content rules is the Autocontrol Code of Advertising Practice (EN)
• See above in the Cookies/ OBA section Data Processing rules from the PAOS Code articles 24 to 28 and the self-regulatory Confianza Online Ethical Code (COEC), updated February 2022 ES / EN key clauses. The code applies to ‘electronic distance media’ and covers e.g. data protection, e-commerce, protection of minors (including a GDPR-based section on processing data) and digital advertising  
• A member company using viral marketing techniques directed to children under 15 (e.g. ‘tell a friend’ or electronic postcards) must not capture data of the third party recipient of the viral marketing when it is forwarded (Art. 29 PAOS Code)
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
• Note that the Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory Consent and Information requirements. See also the COEC code referenced above 

The EU Pledge Implementation Guidance Direct Marketing under pt. 8

Commitments enhanced July 2021, effective January 2022

​

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

STANDARD RULES 

• Content of electronic commercial communications is subject to the rules set out in our earlier content section B, except those rules specific to broadcast. The principal source of rules is Autocontrol's General Code of Advertising Practice (EN) and in this online context the Confianza Online Ethical Code. The linked latter code is the 2022 version in English. Key provisions unofficially translated here. The code contains a single article (23) under the header 'Advertising' to indicate content rules in electronic commercial communications: The advertising in electronic distance communications media of this code’s affiliated entities must be in accordance with the applicable law and with the AUTOCONTROL Advertising Code of Conduct as well as being being decent, honest and truthful, according to the terms in which these principles have been articulated by the International Chamber of Commerce Code of Advertising Practice

1. APPLICABLE LEGISLATION

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

2. APPLICABLE SELF-REGULATION 

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

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

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

DATA PROTECTION: EDPB GUIDANCE

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

1.1. E-COMMERCE / INFORMATION SOCIETY SERVICE

(Art. 20 LSSI) Key clauses 

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

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

1.2. CONSENT AND OPT-OUT 

Key clauses

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

1.3 PERSONAL DATA; B2C solely

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

1.4. HARASSMENT

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

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

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

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

19.1. Collection of data and notice

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

19.2. Use of data

Personal data should be:

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

19.3. Security of processing

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

19.4. Children’s personal data

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

19.5. Privacy policy

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

19.6. Rights of the consumer

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

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

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

19.7. Cross-border transactions

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

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

SECTION C: MARKETERS' OWN WEBSITES

Online commercial communications are generally subject to the same regulations as those offline. Marketers own communications on their own websites are also in remit when communication 'qualifies' as advertising, defined in the Confianza Online Ethical Code (ES 2022, EN key clauses here) as 'any communication made by an individual or legal entity, public or private, when carrying out a commercial, craft, or professional activity with the aim of promoting, directly or indirectly, the contracting of personal or real estate property, services, rights, and obligations or with the aim of promoting certain attitudes or behaviors.' There are exemptions in an owned environment; those are outlined in the relevant article here (EN)

• The content rules for Food and Soft Drinks in section B above apply to marketing communications in all media. The General content rules that apply to all product sectors should also be observed. The principal source of general content rules is the Autocontrol Code of Advertising Practice (EN)
• A member company using viral marketing techniques directed to children U15 (e.g. 'tell a friend' or electronic postcards) must not capture data of the third party recipient of the viral marketing when it is forwarded (Art. 29 PAOS Code; EN)
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
• Note that the channel rules set out here are specific to the Food and Soft Drinks sector; the channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory consent and information requirements, as well as the self-regulatory Confianza Online Ethical Code (COEC), updated February 2022 ES / EN key clauses; the code applies to ‘electronic distance media’ and covers e.g. data protection, e-commerce, protection of minors and digital advertising 
• The General AV Law 13/2022 ES / EN (key clauses inc. 2022 amends) applies to all sectors but carries under article 124 rules related to the protection of children and with reference to foods 'for which an excessive intake in the total diet is not recommended'; scope of the law  is extended to video-sharing platforms following amends to the AVMS Directive by Directive 2018/1808
• Other general/ all-sector laws that have recently developed in scope and may have an impact in this owned space context are the Law on Unfair Competition 3/1991 ES / EN (key clauses inc. 2022 amends) and the General Consumer Protection Law 1/2007 ES / EN (key clauses inc. 2022 amends). Law 3/1991 in particular carries some significant measures as it is the vehicle for the Unfair Commercial Practices Directive 2005/29/EC and its amends in force May 2022 include measures from Directive 2019/2161 which address search rankings and consumer reviews (see articles 26 & 27 of 3/1991). Law 1/2007 includes under article 20 requirements for an 'invitation to purchase.'

• The EU Pledge members commit to: 
   
  • Only advertise products to children under the age of 13 years that meet the EU Pledge Nutrition Criteria
  • No marketing or advertising in primary schools, except where specifically requested by, or agreed with, the school administration for educational purposes
  • To abide by the International Chamber of Commerce (ICC) Advertising and Marketing Communications Code; and the ICC Framework for Responsible Food and Beverage Marketing Communications in all marketing communications

​

• Covered media includes company-owned websites and social media profiles
• See pt. 5 of The EU Pledge Implementation Guidance
• Commitments enhanced July 2021, effective January 2022

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT

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

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

STANDARD RULES 

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

APPLICABLE LEGISLATION AND SELF-REGULATION 

Legislation/ guidance 

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

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

Self-regulation

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

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

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

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2023

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

SECTION C: NATIVE ADVERTISING

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules. Category-specific rules are immediately below 

• The content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, online included; the General content rules that apply to all product sectors should also be observed. The principal source of General Content rules is the Autocontrol Code of Advertising Practice (EN) 
• The ‘Native’ form of advertising is like any other Food and Soft Drink advertising or any sector’s advertising – it’s subject to the Content rules; the key general rule, spelt out under the General tab below, is that of identifiability/ disclosure
• As well as self-regulation being clear about the need for identification, legislation is also all over the issue, principally Unfair Competition Law 3/1991 (EN key clauses inc. 2022 amends) under articles, 26, 27; applicable to all sectors, Food and Soft Drinks included
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature

SECTION C: NATIVE ADVERTISING

CONTEXT

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

LEGISLATION

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

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

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

GUIDANCE

• IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'

• The ICC’s Guidance on Native Advertising (EN): https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf

SELF-REGULATION 

• Point 13 Autocontrol Code of Advertising Practice (EN). Point 13, critical in this context, has been amended. See translated clauses in the link and below

LEGISLATION KEY CLAUSES 

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

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

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

SELF-REGULATION KEY CLAUSES

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

SECTION C: NATIVE ADVERTISING

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

ICC Advertising and Marketing Communications Code (EN) 2018

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

Guidance: ICC Guidance on Native Advertising here

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

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

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

Identification and transparency (Art. 7)

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

Identity of the marketer (Art. 8)

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

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

Commercial practices which are in all circumstances considered unfair

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

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

​Following 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

• The Content rules set out in Section B apply to marketing communications in this channel; the General content rules that apply to all product sectors should also be observed. The principal source of General Content rules is the Autocontrol Code of Advertising Practice (EN)
• Data security rules from the PAOS Code (EN) shown earlier in the section Data Processing and Cookies apply; we caution that the code is from 2012, i.e. pre GDPR 
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
• The General channel/ placement rules, i.e. those that apply to all product categories, Food and Soft drinks included, are shown below under the General tab. These include Consent and Information requirements for this channel 

The EU Pledge Implementation Guidance Direct Marketing under pt. 8

Commitments enhanced July 2021, effective January 2022

SECTION C: DIRECT POSTAL MAIL

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

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

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Data processing in advertising activities (EN). From Autocontrol September 2022, approved by the data protection authority AEPD. Applicable Spanish version here

SECTION C: DIRECT POSTAL MAIL

Applicable Self-regulation and legislation 

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

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

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

SECTION C: EVENT SPONSORSHIP

• There are no channel rules from authorities specifically for sponsorship of events by the Food and Soft Drinks sector
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
• Promotional material (leaflets, brochures etc.) associated with sponsorship will be subject to the content rules set out in section B
• The general content rules that apply to all product sectors should also be observed; these are set out under the General tab, content section B
• The principal source of general content rules is the Autocontrol Code of Advertising Practice (EN)

• The general channel (i.e. placement) rules, shown under the General tab below, include sponsorship rules from the ICC; these can be found under Chapter B of the ICC Code (EN)

• The EU Pledge states that members agree not to engage in food or soft drink product marketing communications to children in primary schools; see pt. 11 of the Implementation Guidance; commitments enhanced July 2021, effective January 2022

From article 40 of Law 17/2011

7. Kindergartens and schools will be areas protected from advertising. Campaigns promoting food, nutritional education, sport or physical activity in schools, and sponsoring sports teams and events in academia must first be authorised by the competent education authorities, according to the criteria established by the health authorities with the objective of promoting healthy nutrition and exercise habits, and the prevention of obesity

SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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• Promotional material that supports sponsorships will be subject to the content rules set out in our earlier section B; principal source of content rules is the Autocontrol Code of Advertising Practice (EN)
• There are no general rules from Autocontrol that apply specifically to the sponsorship of events or other ‘Field Marketing’ activities
• The European Sponsorship Association ESA, code of conduct here, require that members abide by the ICC Advertising and Marketing Communications Code (EN), which sets out sponsorship rules in its Chapter B. Key clauses below 

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• 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

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

• 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

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

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

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

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

SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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

B1: Principles governing sponsorship

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

B2: Autonomy and self-determination

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

B3: Imitation and confusion

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

SECTION C: SALES PROMOTIONS

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) legislation, 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. There are some important general rules applying to all product sectors under the General tab below, e.g. 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 

• Sales promotional material should observe the Food and Soft Drink rules in Content Section B; the General content rules that apply to all product sectors should also be observed. The principal source of General Content rules is the Autocontrol Code of Advertising Practice (EN)
• Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature; specific promotional prohibitions below
• There shall be no point-of-sale advertising, giving of samples or any other promotional device to induce sales of infant formula directly to the consumer at the retail level, such as special displays, discount coupons, premiums, special sales, loss-leaders and tie-in sales (Art. 14 (2) Dir. 2006/141/EC)
• Manufacturers and distributors of infant formulae shall not provide, to the general public or to pregnant women, mothers or members of their families, free or low-priced products, samples or any other promotional gifts, either directly or indirectly via the health care system or health workers (Art. 14 (3) Dir. 2006/141/EC)
• Note that the Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory requirements when running promotions or competitions, or when communicating price in a promotional context

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SPECIFIC PROMOTIONAL RULES FROM THE PAOS CODE 

The PAOS Code (EN) for Food and Drink marcoms directed to children has specific rules applicable to 'Special Offers, draws, competitions and children’s clubs': any advertisement including a special offer shall be designed in such a way that, in addition to transmitting the message relative to the promotional incentive, it should clearly show the product advertised (Art. 18)

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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. In the case of Spain, however, we have included extensive provisions from the Retail Trade Act, as well as national self-regulatory codes and consumer protection legislation around pricing, for example. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal. As promotional advertising/ communications might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be reviewed by specialist advisors

1. APPLICABLE RULES 

1.1. Legislation

1.2. Self-regulation in promotions

1.3. Guidance

2. PROMOTIONAL FORMS 

2.1. Promotion of sales with free gifts

2.2. Information requirements

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

2.4. Online advertising of promotional offers and games/ competitions

2.5. Skill-based and prize draws

2.6. Free-prize draws/ sweepstakes

2.7.  Paid-entry sweepstakes, games and raffles

2.8. Competitions and contests

2.9. Other requirements

3. HORIZONTAL LEGISLATION 

3.1. Misleading Advertising by omission of material information

3.2. ‘Bait’ advertising and misleading promotional practices

4. LEGAL BASES (rules of the promotion)

5. SOCIAL NETWORKS 

6. SELF-REGULATION IN PROMOTIONS 

6.1. Autocontrol Code of Advertising Practice

6.2. ICC Advertising and Marketing Communications Code 

SECTION C: SALES PROMOTIONS

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

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

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

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

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

ICC Code Chapter A Sales Promotion 

A1: Principles governing sales promotions

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