Gambling

 

Uploaded August/ September 2019.

See individual countries for updates.

 

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Spain

A. Overview

Sector

SECTION A OVERVIEW

 

Recent updates:

New AC Code August 2019

New Gam Code Dec 2019, effective Jan 15 2020

Autocontrol review March 2020

New Royal Decree Oct 2020

New Influencer Code Dec 2020

New AC links May/ June 2021

Refresh August 2021

Blogs Sept and Oct 2021

New agreement Oct 2021 DGOJ/ AC

Draft decree (ES) September 2021

Links checked December 2021

Draft Bill to amend the Spanish Gambling Act
Above from Osborne Clarke Sept 2022

General AV Law 13/2022 May 2022 (EN)

Unfair Competition Law 3/1991 (EN) i.f. Oct 2022

COEC EN translation October 2022

Online commercialization of lottery games

Above DLA Piper/ Lex October 19, 2022

Spain: Gambling Comparative Guide

Above Asensi Abogados/ Mondaq Nov 2022

 

SELF-REGULATION

 

  • The Gambling Code of Conduct (EN; applicable Spanish code here) was established via a June 2012 agreement, updated October 2021, that involved DGOJ (the Gambling Regulator), the industry, and Autocontrol, the Spanish advertising Self-Regulatory Organisation. The Code was updated effective January 15, 2020 and applies to any form of commercial communication of any type of gambling activity regulated by Law 13/2011 (essentially, online Gambling activities). 65 Gambling operators and several media providers are signatories. Note the linked Code is ‘an unofficial English translation of the official texts in Spanish. The latter will prevail in case of discrepancies.’ 
  • The Gambling sector must also observe the ‘General’ rules that apply to all sectors. These are set out in full under the General tab below; the core set of rules is the Autocontrol Code of Advertising Practice. The latest Spanish version, as of May 2021, is here, the Autocontrol English translation here.

 

LEGISLATION

 

  • In Spain, Gambling regulation is subject to two separate legal regimes, one at State or national level and the other at regional level. In general, online gambling activities are regulated at state level where the focus is on the supra-regional / cross-border operation, whilst traditional on-site/ land-based gambling activities (bingo halls, betting shops, casinos) fall under the legislative supervision of the regional authorities/ autonomous communities.  
  • This Licensing and taxation of gambling activities in Spain from DLA Piper via Lexology and their General introduction to gambling law in Spain are helpful round-ups of the legislative framework and include some of the regional legislation referenced above.
  • Law 13/2011 ES / EN on the regulation of gambling (EN translation does not include minor amends to Art. 7) defines the legal framework for online gambling operations. The law applies to gambling activities carried out via electronic, computerised, telematic and interactive means (including TV, internet, landline/ mobile, text message (Art. 1 and Art. 3h) at state level. 
  • Royal Decree 1614/2011 (EN) implements Law 13/2011 primarily with regard to the procedure for obtaining authorisations and other detailed aspects of licensing. A temporary provision states that until the completion of a separate draft Royal Decree that will implement/ expand Article 7 of Law 13/2011, advertising, sponsorship, and promotion of gambling activities will be regulated by the same Article 7, together with the General Advertising Law 34/1988 (EN 2022; relevant Art. 5.1) and the regulations developing that law: Act 3/1991 on Unfair Competition (EN 2022) and Law No. 29/2009 (EN) which implements UCPD 2005/29/EC.
  • The draft Royal Decree referenced above was passed into law as Royal Decree 958/2020 (ES) of November 3, on commercial communications of gambling activities. The key clauses in English have been unofficially translated by GRS here, the clauses in English aligned with the original Spanish. Scope and definitions here. 'Highlights' are:

 

- Audiovisual advertising between 1am and 5am only (art. 18) 

- No sport shirt or stadium or entertainment facility or sports competition sponsorship (art. 12) 

- No promotional marketing aimed at new customers (art. 13) 

The appearance in commercial communications of people or characters of relevance or public profile is prohibited (art. 15)

 

The rules are set out in the following Content Section B and Channel Section C, as applicable, or see the linked files above

There’s also a helpful summary blog from Osborne Clarke here and No More Celebrities in Gambling Ads in Spain from Gala/ Lexology in October 2021.

 

Ministerial Orders

 

Various Ministerial Orders, collected here, regulate the specifics of different forms of gambling – roulette, blackjack etc. These decrees all carry the same article 9, which carries promotional rules such as identifiability, social responsibility, and protection of minors. Details in the following Content Section B or see the linked documents.

 

Other relevant laws

 

Also important is the General AV Law 13/2022 (EN key clauses) which regulates audio-visual media, both traditional TV/Radio and on-demand services and video-sharing platforms including commercial communications in those media. This law is supplemented by Royal Decree 1624/2011 (EN), which covers marcoms during the live transmission of sports events. Whilst these are general advertising rules and not exclusive to gambling advertising, its provisions are specifically referenced in the Ministerial Orders referenced above and the Self-Regulatory Code of Conduct of Commercial Communications of Gambling Activities (see below), in particular Article 123 Audiovisual commercial communications that encourage behaviours harmful to health and 124 rights of minors.

 

NATIONAL AUTHORITY
and draft decree

 

At national level, Gambling activities are regulated by the General Directorate for the Regulation of Gambling Activities (‘Dirección General de Ordenación del Juego’, or DGOJ), also responsible for issuing licences to operators, which licences include authorisation for advertising and promotion. The authority reported September 2021 discussions on the draft Royal Decree that regulates the development of safer gambling environments. The draft decree (ES) was out to consultation by the Ministry until September 24.

 

REGIONAL REGULATION

 

For the advertising of land-based/ on-site gambling operations, the 17 autonomous regions regulate gambling activities within their respective territories. The majority of those regions provide rules on the advertising of gambling activities and gambling operators. The Gambling Policy Council (Consejo de Políticas del Juego) is responsible for acting as a liaison between the state and the appropriate authorities in each of the 17 regions.

 

RESPONSIBILITY MESSAGING 

 

The terms of the Gambling Code of Conduct (unofficial EN) include the requirement under Article 6.14 and Appendix II to incorporate responsibility messages and website together with the prohibition of U18s, showing these in either full screen or banner form:

 

 

 

 

The gambling authority DGOJ provides the website (referenced above in situ) which addresses responsible gambling: www.jugarBIEN.es

 

 

The November 2020 Decree 958/2020 (ES / EN key clauses) referenced above includes under article 10/3: 'Commercial communications must include a message about playing responsibly, such as “si juegas, juega con responsabilidad” (If you play, play responsibly), “jugar sin control puede tener consecuencias perjudiciales a nivel sicosocial” (Playing recklessly can be psychologically damaging) or similar.' Layout rules are shown in the following Content Section B; in brief, either 'clearly visible' throughout the commercial, or for at least two seconds at the end of it. Article 11/3 of the Royal Decree requires that 'Commercial communications must include the warning that minors may not participate in gambling activities, such as ‘No minors’, ‘+18’ or similar.' See the linked file or the following Content Section B for layout rules.

 

CHANNEL RULES 

 

These are set out under individual channel headings that follow in Section C. The obvious and very important issue is the avoidance of minors in all channels, a requirement of various sources of both legislation and Self-Regulation. A key influence, per above under 'other relevant laws', is the General AV Law 13/2022 (EN key clauses inc. 2022 amends) which carries the rules from the AVMS Directive 2010/13/EU and extends those into video-sharing services as a result of amends from the 2018/1808 Directive. Gambling commercial communications are referenced under article 123/7: 'Audiovisual commercial communication related to games of chance and betting may only be broadcast between 1:00 a.m. and 5:00 a.m., without prejudice to the provisions of section 8 and with respect for the principles of protection of minors, social responsibility and responsible or safe gambling under the terms set out in the sector regulations governing commercial communications for this type of gambling.'

 

GENERAL RULES

 

It's important that the rules for all product sectors, shown in full below under the General tab, are also understood; adjudications against Gambling advertising may well come from general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is Autocontrol’s Code of Advertising Practice (EN). It's as well also to be aware of the key legislation that applies to all sectors and that, in the case of Spain, has been subject to some significant May 2022 amends. Law 3/1991 on Unfair Competition (EN key clauses inc. 2022 amends), carries the core European legislation on commercial practices/ communications from the Unfair Commercial Practices Directive 2005/29/EC and the amends introduced by Directive 2019/2161 related to search rankings, consumer reviews and international marketing; see arts. 26/27 and 5 of Law 3/1991. The General AV law, referenced above in the context of channel rules, carries the European rules emanating from the AVMS Directive 2010/13/EU, recently amended by Directive 2018/1808 to extend scope into video-sharing platforms. Gambling-specific clauses are under article 123/7 of the AV law and the video-sharing requirements for the identification of commercial communications under article 91. Finally in this 'snapshot' of all-sector legislation, Law 1/2007 on General Consumer Protection (ES / EN key clauses inc. 2022 amends) under article 20 supplies the 'invitation to purchase' rules as well as duplicating those on search rankings and consumer reviews. 

 

 

 

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General

SECTION A OVERVIEW

 

Updates

Autocontrol review March 2020

AVMSD updates May 2020

EDPB updates Aug 2020

New links AC Code Oct 2020

DP and Influencer Codes added Nov/ Dec 2020

New AC services Jan 2021; Section D

Directive 2019/2161 Section E Jan 2021

Influencer decision, new code links, added May 2021

Consumer protection and food developments October 2021

Google's environmental claims policy October 2021

ICC Environmental framework 2021 (November)

Commission Guidance UCPD December 2021

IAB TCF Framework and GDPR. Feb 2022

Commission guidance reduced pricing 

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

Draft General AV law (ES) approved June 2022

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

Google says cookie here to stay until 2024

General Advertising Law 34/1988 ES / EN

New clauses above in force October 2022

Confianza Online Ethical Code EN Oct 2022

 

 

SOME (RELATIVELY) RECENT DEVELOPMENTS

 

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

Osborne Clarke/ Lex July 25, 2022

 

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

 

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

 

SELF-REGULATION 

 

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

 

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

 

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

 

LEGISLATION IN CONTENT 

 

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

 

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

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

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

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

 

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

 

CHANNEL RULES FRAMEWORK - statutory

 

AV

 

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

 

Data protection

 

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

 

Cookies and E-commerce

 

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

 

SPECIFIC CLAIM AREAS
Pricing

 

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

 

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

 

Environmental claims

 

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

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

 

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

 

 

 

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Read more

International

SECTION A OVERVIEW

 

Updates since April 2021
 

WFA Planet Pledge April 2021 

Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021                               

WHO Alcohol consultation October 2021

CJEU judgement re Inbox November 2021

Trade Desk/ UID GDPR issues Nov 2021

UCPD guidance December 2021

ICAS Factbook and database Dec 2021

IAB Guide to Native Advertising Dec 2021

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. March 25, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

DLA Piper Global Influencer guide 

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

New global network for online harm November 2022

Coke's aspirational claims are not actionable

Frankfurt Kurnit Klein & Selz PC November 20, 2022

 

 

RECENT ISSUES

 

General

 

Chambers Global Practice Guide Advertising & Marketing 2022

Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland

GALA Releases Videos from "Global Advertising in an Age of Crisis and Change" Conference  28 Oct, 2022

The 7 legislative developments that will disrupt the global advertising ecosystemThe Drum U.K. October 2022

 DLA Piper's Advertising Laws of the World August 31, 2022

 Avoid an advertising red card: Middle Eastern considerations for your Qatar ‘22 campaign CMS Cameron McKenna Nabarro Olswang LLP/ Lex Sept 2022

 

Environmental

 

The European Parliament Adopts New Sustainability Reporting Rules. Jones Day November 22, 2022 

Corporate Sustainability Reporting Directive (above) affects companies with 'substantial business activity in the EU.'

Coke's aspirational claims are not actionable. Frankfurt Kurnit Klein & Selz PC November 20, 2022 (U.S.)

The EU Corporate Sustainability Due Diligence Directive

Rahman Ravelli November 16, 2022 

Greenwashing: Exploring the risks of misleading environmental marketing in China, Canada, France, Singapore and the UK. Gowling WLG, Sept 2022

 Advertising around green and sustainability claims. Baker McKenzie/ Lex August 2022. EU, US, UK

The Global ESG Regulatory Framework toughens up White and Case July 2022

 Commission proposes new consumer rights and a ban on greenwashing April 2022; Directive proposal here

Related to the above, the Empowering Consumers in the Green Transition initiative, tabled on 30 March 2022 by the European Commission, remains open for feedback until 29 May

April 2022. WFA issues Global Guidance on Environmental Claims

 

Digital/ privacy

 

 New Digital Regulators on the 2023 Horizon from RPC/ Lex shows some disticnctions between the EU and UK regulatory approaches. December 2022

Data protection update Stephenson Harwood LLP/ Lex. EU, France, Global, Ireland, Netherlands, South Korea, UK, USA. December 2022

The Digital Markets & Digital Services double Act take the stage. GALA/ Lex. October 28, 2022. Simple and broad explanation with a nod to the U.K. More in-depth view of the DSA from the same firm here and this November 2022 piece from Osborne Clarke/ Lex includes a summary of the advertising impact of the DSA

  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

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

European parliament adopts Digital Services Act and Digital Markets Act CMS Cameron McKenna Nabarro Olswang LLP July 2022

2022 Strengthened Code of Practice on Disinformation from the EC. Signatories commit to prevent misuse of advertising systems to disseminate disinformation. EACA, the European agency association, a signatory

 Incoming EU data and digital legislation from Taylor Wessing/ Lex; IMCO newsletter, both May 2022

 23/4/22. The 'Trilogue' (European Commission, Council and Parliament) agreement on the Digital Services Act, 'a landmark piece of legislation that aims to address illegal and harmful content by getting platforms to rapidly take it down.' Council's press release is here  

Data Protection update March 2022 Stephenson Harwood LLP/ Lexology. Includes reference to US-EU agreement of principles for data transfer mechanism to replace Privacy Shield

ePrivacy Regulation: EU Council agrees on the draft. Härting Rechtsanwälte/ Lex. March 2022

 

Children

 

From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
 The new strategy for a better Internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here

 

 

ISSUES TO LOOK OUT FOR IN 2022 
 
A February 2022 global/ USA perspective 
►The IMCO committee (Internal Market and Consumer Protection) published in February 2022 A Study on Influencer Marketing. This covers some important legal and self-regulatory ground and is one of several signs that the EU is looking to tackle Influencer marketing
► Some environmental rulings in the U.K., Sweden and the U.S. as this is and will remain a high profile issue internationally; see also Greenwashing: Exploring the risks of misleading environmental marketing in the UK, Canada, France and Singapore from Gowling WLG/ Lex April 2022
 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

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). News story here (EN). The Dutch DPA have subsequently advised companies to to stop using TCF

 

Chrome introduced a new Privacy Sandbox proposal to support interest-based advertising called the Topics API. This new API replaces the previous FLoC proposal. Topics are ‘recognisable interest categories that represent the user's top interests, based on their recent browsing history’. The technique can be used to personalise ads, without sharing specific sites the user has visited. More information here

 

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

December 2021 ICAS published the fourth edition of its Global SRO Database and Factbook

December 2021 EASA update on the progress of the EC Beating cancer plan (BECA), which potentially impacts marketing/ advertising in both the Alcohol and Food categories 

In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version

This Digital policy and legislation - 2021 roundup from Taylor Wessing/ Lexology December 2021 is a helpful piece on status in digital regulation in Europe and the UK

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

EU Code of Conduct on Responsible Food business and Marketing Practices July 2021

 This from the EDAA is a helpful and simple explanation of the DSA

The EU’s Green Consumption Pledge Initiative focuses on 'non-food or mixed businesses with direct interaction with consumers'

 

THE OMNIBUS DIRECTIVE

 

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

 

1. SELF-REGULATION
1.1 The ICC Code
 
This 'International' sector provides largely Self-Regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2018, underpins much of Self-Regulation worldwide.
 
Most countries feature national advertising Self-Regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide a 'gateway' to Codes around the world, as do ICAS, the International Council for Advertising Self-Regulation. Translation of the code into eleven languages is here.
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of Advice and Good Practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between Paid and Unpaid communications. These documents are placed and linked in relevant channels within the text in each country.
 
1.3 Structure and scope of the ICC Code

 

The Code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code Chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

All the individual rules themselves are set out in the following Content Section B and Channel Section C

 

Children

 

  • Article 18 of the General Provisions of the ICC Code covers children and teens at some length. Additionally, Article C7 from the Chapter Digital Marketing Communications addresses Marketing communications and children
  • 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) 
  • On the home page of this website, you'll find a complete Children's sector with the rules spelt out country by country 

 

1.4 Sector and channel rules 

 

The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our Channel Section C, together with the applicable European legislation.

 

2. THE LAW
European Regulations and Directives

 

 
We draw extensively on European Directives and their national implementation in the Sector and General rules shown elsewhere on this website. In this international context, we show only the most immediately relevant Directives and a brief extract of their rules, together with links to EU Regulations which apply directly in member states. It should not be assumed that Directives are always implemented to the letter, but providing them together in one place at least allows a broad understanding of the influences of European legislation. EU Regulations are significant in the Food sector of those we cover currently, for example, and it's important at least to be aware of them, albeit rules are reflected in the Self-Regulatory measures that remain the most important influence in advertising regulation in Europe and elsewhere. A valuable June 2021 piece from Simmons and Simmons/ Lexology Media law and regulation in European Union focuses largely on the AVMS Directive and its amendment by Directive 2018/1808.

 

The issue with European rules is that it can be difficult to understand which regulation applies to which marketing technique or process, especially as some Directives apply to several marketing tools. The table below provides an overview; the marcoms-relevant rules are set out in Content Section B and Channel Section C, as applicable.
 
 
European Directives in marketing

 

Issue or Channel Key European legislation and clause
Cookies
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
Electronic coms. Consent and Information 
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance 
Audiovisual media 

Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms 

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

Data Processing 

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

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

 

 

Sections B and C below sets out the rules that are relevant to marketing communications from the Directives above, together with the Self-Regulatory measures referenced under Point 1 in this overview.

 

 

 

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Read more

B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

Royal Decree 958/2020 (ES) that severely restricts Gambling advertising came into force November 2020. The key clauses in English have been unofficially translated by GRS here, the clauses in English aligned with the original Spanish. Provisions are set out below under point 1 Legislation 
 
This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

1. LEGISLATION

 

1.1. Law 13/2011

1.2. Decree 958/2020

1.3. Ministerial Orders

1.4. Royal Decree 1614/2011

1.5. EU Recommendation Online Gambling

 

2. SELF-REGULATION

 

2.1. Principle of legality

2.2. Principle of good faith

2.3. Principle of identification

2.4. Principle of truth

2.5. Principle of social responsibility

2.6. Principle of responsible gambling

       (Incorporates warning/ responsibility message)

2.7. Protection of minors

2.8. Scheduling

2.9. Online

2.10. Adjudications

 

3. EGBA STANDARDS/ CODE OF CONDUCT

 

4. GENERAL RULES applicable to all sectors

 

4.1. Self-Regulation

4.2. Legislation

 

 

1. LEGISLATION

 

1.1. Law 13/2011 of 27 May on the regulation of gambling. Article 7 Advertising, sponsorship and promotion of gambling activities. DGOJ English translation here of the full law

 

  • Article 7 does not carry Marcoms content rules per se, but sets out the regulatory framework for all forms of advertising activity and establishes that it can come only from licensed operators; article 7 is extracted here (EN) for the record
  • The legislative framework is developed under Ministerial Decrees and Royal Decree 1614/2011 below, with the important recent addition of Royal Decree 958/2020, key extracts from which are set out immediately below  

 

1.2. The Royal Decree 958/2020 (ES; EN translation of key clauses here) ‘develops’ Law 13/2011 ‘with regard to the conditions under which licensed operators included in its scope may carry out advertising, sponsorship, promotion or any other form of commercial communication of their activity.’

 

Article 7. Principle of identification of commercial communications and the advertiser

 

  1. Commercial communications from gambling operators must be clearly identifiable and recognisable as such. Without prejudice to the fact that different formulations, terminology or presentation may be used for this purpose, the requirement set out in this section shall be understood to have been fulfilled when the commercial communication includes clearly and noticeably, in a manner appropriate to the medium through which it is disseminated, the word "publicidad" (advertising), the abbreviation "publi" (ad) or similar, or when it is inserted in advertising breaks or spaces clearly identifiable as such by the recipient
  2. In gambling operators’ commercial communications, the corporate name or the commercial name or image of the gambling operator whose activities are promoted. Commercial communications, whatever their format, will not mislead the identification of the operator that actually carries out the activity being promoted
  3. It is forbidden for an operator to use trademarks, trade names to identify itself and differentiate itself from other operators, without these being owned or owned by the business group to which said operator belongs. Commercial communications about specific games marketed by an operator are excluded from this prohibition.
    Gambling operators’ commercial communications may not contain references to games or bets related to the results of the games or draws of another operator, nor to their intellectual or industrial property, without the prior authorisation of the latter. The acts of comparison provided for in article 10 of Law 3/1991, of January 10, on Unfair Competition, are excluded from this provision, which are allowed under the terms provided in said regulation

 

Article 8. Principle of truthfulness

 

  • Gambling operators’ commercial communications will not include false information or information that, even though it is true, by its content or presentation misleads or may mislead or confuse recipients. Likewise, commercial communications will not omit substantial data or relevant facts if said omission allows the misleading of recipients

 

Article 9. Principle of social responsibility

 

  1. Gambling operators’ commercial communications will be made with a sense of social responsibility, without undermining or trivialising the complexity of the gaming activity or its potential harmful effects on people, and must respect human dignity and constitutionally recognized rights and freedoms
  2. Considered contrary to the principle of social responsibility and therefore prohibited are, in particular, commercial communications that:

 

  1. Encourage antisocial or violent attitudes or behaviors of any kind, discrimination for reasons of birth, racial or ethnic origin, sex, religion, opinion or belief, age, disability, sexual orientation, gender identity, illness, or any other personal or social condition or circumstance
  2. Encourage humiliating degrading or irritating attitudes or behavior
  3. Associate, connect, represent or relate gambling activities in a positive or attractive way with activities or behaviours that are illegal or harmful to public health, as well as with those that result in economic, social or emotional harm
  4. Denigrate those who do not play or endow with superior social status those that do
  5. Include messages that devalue effort compared with gambling
  6. Make express appeals to the recipient of the commercial communication to share with other people the message contained in it
  7. Convey tolerance regarding gambling in educational or work environments
  8. Suggest that play can improve personal skills or social recognition
  9. Include sexual content in commercial communications; connect gambling to seduction, sexual success or increased attractiveness
  10. Present the game as indispensable, a priority or important in life
  11. Present family or social relationships as secondary to the game
  12. Use graphical representations of money or luxury products

 

Article 10. Principle of safe play

 

  1. The design and distribution of gambling operators’ commercial communications will pursue the balance between the promotion of gambling activity and the necessary protection of consumers against the risks of that activity
  2. Considered contrary to the principle of safe play and therefore prohibited, in particular, are those commercial communications that:

 

  1. Encourage thoughtless or compulsive gambling, or present these aspects as stimulating or engaging practices
  2. Present loan offers or any other means of credit to game participants or provide access to links or other sites that offer loans or credits quickly and immediately
  3. Suggest that gambling can be a solution or alternative to personal, educational, professional or financial problems
  4. Associate, connect or relate play activities to ideas or behaviours that express personal, family, social, sporting or professional success
  5. Mislead about the possibility of gains or suggest that  repetition of the game increases the probability of winning
  6. Suggest that the skill or experience of the participant will eliminate the chance on which winning depends, or appeal to knowledge, perseverance, competitiveness or instinct of the former, or dominance of the operator's betting platform, as elements that determine success in gambling
  7. Specifically target self-banned or self-excluded people
  8. Present, or portray as similar, gambling as an economic activity or financial investment, or as an alternative to employment, or a way to recoup economic losses of any kind

 

  1. Commercial communications must include a message about playing responsibly, such as si juegas, juega con responsabilidad” (If you play, play responsibly), “jugar sin control puede tener consecuencias perjudiciales a nivel sicosocial (Playing recklessly can be psychologically damaging) or similar, in line with one of the following options:

 

  1. If it is transmitted graphically, the message will be clearly visible throughout the commercial communication or, failing that, it must occupy the entire image for at least two seconds  at the end of the commercial communication
  2.  If the message is transmitted orally, it must always appear at the end of the commercial communication, for at least two seconds

 

In the case of its distribution through radio/ audiovisual communication services, the playing responsibly message must appear in at least one out of every two successive commercial communications from the same operator and service provider, without prejudice to the provisions of article 21.4 in the case of competitions

 

  1. The gambling authority may establish by resolution that It is compulsory for commercial communications to include a message regarding the harmful effects from the user’s compulsive gambling or risky gambling behavior, alternatively or as well as the message established in the previous section. The gambling authority may  establish by resolution specifications regarding the shape, size, assembly, contrast and content of the messages provided in this article

 

Article 11. Principle of protection of minors

(includes warning messages)

 

  1. Gambling operators’ commercial communications may not be aimed directly or indirectly at minors, nor may they be used to persuade or encourage this group to gamble
  2. Considered contrary to the principle of protection of minors and therefore prohibited, in particular, are those commercial communications that:

 

  1. Directly or indirectly, for their own part or via third parties, encourage minors to gamble
  2. Due to their content or design, include brand symbols or jingles specifically or mainly aimed at minors, rationally and objectively inclined to attract the particular attention or interest of minors
  3. Exploit the special relationship of trust that minors place in their parents, teachers, or other people
  4. Use the image, voice or other characteristics inherent to minors or people depicted so as to appear underage
  5. Present the playing of the game as a sign of maturity or an indication of the rite of passage to adulthood
  6. Are distributed or placed in channels, programmes or media, of whatever kind, intended specifically or primarily for minors
  7. Are placed in applications, web pages, or digital content directed specifically or mainly to minors, or juxtaposed with links to web pages for that same audience
  8. Are distributed or placed inside or outside rooms or other spaces intended for the public, when there are screenings of cinematographic works or theatrical or musical performances which minors can access
  9. Are distributed or placed inside or outside stadia, halls or sports venues, when events or competitions whose participation is restricted are held exclusively for minors
  10. Refer to bets on events whose participation is restricted exclusively to minors

 

  1. Commercial communications must include the warning that minors may not participate in gambling activities, such as ‘No minors’, ‘+18’ or similar, in line with one of the following options:

 

  1. In the event it is transmitted graphically, the warning will be clearly visible throughout the commercial communication or, failing that, it must occupy the entire image, for at least two seconds, at the end of the commercial communication
  2. If the warning is transmitted orally, it must always appear at the end of the commercial communication, for at least two seconds

In the event of its distribution via radio/ audiovisual communication services, the warning above must appear at least in one out of every two successive commercial communications from the same operator and by the same service provider. The gambling authority may establish, by resolution, the specifications regarding the shape, size, arrangement, contrast and content of the message

 

Article 14. Free game applications

 

  1. Operators may offer free gambling applications, provided that:

 

  1. They are only available on the operator's platform once the person has registered
  2. They do not generate a false expectation about the games marketed by the operator in which money or other types of economically assessable goods are used, either through the use of different game rules, or through the use of a random number generator or another system of randomness with software or programming different from that used in the real game, or by means of any other substantial variation with respect to the conditions in which the game actually marketed takes place.
  3. Promotional activities related to free game applications must always respect the provisions of article 13

 

Sponsorship

 

Sponsorship activities (art. 12) and promotional activities (art. 13)

are shown under the relevant headers in our following Channel Section C, as is Chapter III

‘Specific provisions depending on the advertising channel’

 

Article 15. Appearance of people or characters of relevance or public notoriety in commercial communications

 

(in force April 2021 in the case of pre-existing contracts)

 

  1. The appearance in commercial communications of people or characters of relevance or public notoriety, whether real or fictional, is prohibited. This will only be allowed to happen when:

 

  1. They have acquired this status as a result of their own commercial communication
  2. Whoever narrates the live broadcasts provided for in article 19, in which case, in addition to adjusting specifically to the provisions of the aforementioned article, they may only broadcast them in the context of the narration of the event
  3. Those who present competitions broadcast through television or radio media, in which case they can only broadcast during the programme that supports the competition

    Advertising of gambling activities that offer people who forecast the results of bets (betting tipsters) will observe the provisions of article 27 (ES / EN) of this Royal Decree

 

 

1.3. Art. 9 (EN) Ministerial Orders developing types of gambling activity

 

There are some fifteen of these Ministerial Orders, shown here with links to Spanish and English versions; they regulate the specifics of various different forms of betting, setting out rules for e.g. payment of prizes, formalising bets, gameplay, determining and awarding prizes etc. Regarding marcoms, all carry a single identical article 9, set out below

 

  1. Per article 7 of Law 13/2011, the advertising, sponsorship or promotion of gambling activities by gambling operators, as well as the advertising or the promotion of the gambling operators, should be carried out according to the following criteria:

 

  1. The advertising must be easily identifiable by the recipients
  2. Ensure that advertising activity is socially responsible, paying due attention to the protection of minors and other particularly vulnerable groups. Thus, in the case of minors, advertising should not be targeted at them, nor should it be especially attractive to children, nor should they have a significant role in the promotional activity. (See also Article 11 Principle of protection of minors, in the Royal Decree 958/2020 (EN) of November 2020) 
  3. In the case of audio-visual media broadcasts, the relevant provisions applicable to commercial communications and self-promotion contained in General Law 7/2010 on Audiovisual Communication should be respected and in particular the provisions of Article 7 on the rights of the minor. Equally, special attention will be given to the scheduling of gambling advertising, and account taken of the age rating of the programme together with its content (EN key clauses General Law 7/2010 here). See also articles 18-22  in the Royal Decree 958/2020 (EN) of November 2020, set out in the following Channel Section C

 

  1. In addition, the operator can carry out promotional activities for offering games/ gambling activities that it markets and can offer bonuses / discounts for player registration or participation (see terms of Decree 958/2020 above) provided that such practices:

 

  1. Are not contrary to the provisions in this basic regulation or the regulation governing gambling
  2. Do not contravene the provisions of Law 34/2002 on information society services (EN key clauses here) and the General Law on Audiovisual Communication 7/2010 
  3. Do not alter the dynamic of the game
  4. Do not mislead the participant as to the nature of the game

 

  1. It falls on the operator to publish on its gambling platform the terms and conditions of application and duration of any promotional initiative that it develops
  2. The National Gaming Commission (now DGOJ) may limit the maximum amount of promotional initiatives and allowances to participants developed by the operator, under the terms provided in Article 7 of Law 13/2011 and the regulations implementing the article
  3. Gambling operators can offer on their platforms free gambling applications under the terms provided for in the regulations implementing Law 13/2011. See article 14 of Decree 958/2020 above 

 

 

1.4. Royal Decree 1614/2011 (EN) which develops Law 13/2011

 

  • The Decree provides specific licensing requirements across various forms of Gambling. There is a single reference to marcoms as follows:

 

  • Until publication of the Royal Decree implementing Article 7 of Law 13/2011 on the regulation of gaming, the advertising, sponsorship, and promotion of gaming activities will be carried out in accordance with the aforementioned article (i.e. article 7), with General Law 34/1988 on Advertising, with Law 3/1991 on Unfair Competition, and with Law 29/2009 regarding unfair competition and advertising
  • The above-mentioned Royal Decree has now been published; see Legislation, point 1.2 and other references above 

 

 

1.5. EU Recommendation Online Gambling

 

Commission Recommendation (not binding in law but important to be aware of) No. 2014/478/EU of 14 July 2014. As the new Decree 958/2020 is specific and goes rather further than the Recommendation, we have simply linked it for the record. Key chapters are:

 

III. Information requirements ​

IV. Minors

VIII. Commercial Communication

IX. Sponsorship

 

2. SELF-REGULATION

 

The first transitory provision of Decree 958/2020 states: 'The content of the Code of Conduct on Commercial Communications of Gaming Activities of June 7, 2012 will be adapted to the content of this Royal Decree within a period of six months from its entry into force.’ (i.e. by May 2021). The following are the Self-Regulatory provisions in force. Translation is primarily Autocontrol's

 

The Gambling Code of Conduct (EN former version; applicable Spanish code here; new clauses translated below by GRS)

 

Scope: applies to all advertisements, promotion, sponsorship and any other form of commercial communication disseminated in Spain, of any type of gambling activity regulated in Law 13/2011, of 27 May, on the regulation of gambling, including the promotion of companies, brands and events carried out by companies or bodies bound to the Code. 

 

1. Principle of legality

 

  • Commercial communications related to gaming or gaming operators shall adapt to the legislation in force, whatever their content, the dissemination methods or form, and in no case shall they lead to infringing the applicable legislation
  • Including, but not limited to, and besides the provisions related to the advertising, promotion and sponsorship of gaming activities contained in Law 13/2011, of 27 May, and its implementation regulations, it shall be necessary to include General Advertising Act 34/1988, of 11 November, Law 3/1991, of January, on Unfair Competition, as well as any other regulations related to the sector, according to the dissemination method used, such as General Law 7/2010, on Audiovisual Communication, or Law 34/2002, of 11 July, on Information Society and Electronic Commerce Services

 

2. Principle of good faith 

 

  • Commercial communications related to gaming or gaming operators shall adapt to the demands of good faith and good business practices, whatever their content, the dissemination method or form they adopt.

 

3. Principle of identification

 

  • Commercial communications must be easily identifiable and clearly recognisable as such

 

4. Principle of truthfulness

 

  • 4.1. Commercial communications shall be truthful. Therefore, they cannot mislead their intended audience, nor can they omit or hide important information if such omission is liable to mislead its audience
  • 4.2. If the gambling activity is advertised or promoted by an advertiser other than the operator, the former must inform clearly of this matter and provide the identity of the licensed operator running the gambling activity
  • 4.3. Commercial communications and self-promotions must include all the essential elements of the terms and conditions of the bonuses or promotions, being understood as essential those that directly affect the validity of the offer, the redemption of said bonuses and any winnings, among others: terms for bonus redemption terms if they apply, other relevant amounts (for example, minimum deposit required), minimum stake, number of times that the amount has to be placed and, where appropriate, any limits on the amount released (e.g.: maximum amount, discount of the amount of bonus, etc.). In those advertising spaces which, due to their size or capacity, it is not possible to include the aforementioned information, the provisions of the current official position of the Directorate General of Gambling Regulation will at all times be fulfilled

 

5. Principle of social responsibility

 

  • Commercial communications related to gaming activities will be made with a sense of social responsibility and, as a consequence, all commercial communications or self-promotions will be forbidden that:

 

  • 5.1. Directly or indirectly encourage antisocial or violent behaviour
  • 5.2. Promote illegal methods or types of games or encourage people who have not obtained the corresponding authorisation to develop games
  • 5.3. Represent, approve or encourage socially irresponsible gaming behaviour, as well as conduct that leads to financial, social or emotional damage
  • 5.4. Offer messages that can devaluate (sic.) effort, work or study in comparison with gaming
  • 5.5. Convey tolerance in regard to games played in working environments
  • 5.6. Suggest that games can improve personal skills or social recognition
  • 5.7. Include sexual content or link games to seduction, sexual success or increased physical attraction
  • 5.8. Present games as an essential or fundamental aspect of life
  • 5.9. Lead a group to insist on playing or scorn at abstinence from gaming
  • 5.10. Present family or social relationships as secondary to gambling
  • 5.11. Denigrate people who do not play or, on the contrary, endow people who play with social superiority

 

6. Principles of responsible gambling

 

  • Games must be played in a responsible manner. Therefore, commercial communications and self-promotions will respect the following principles:

 

  • 6.1. Prohibition of commercial communications or self-promotions that encourage playing games in an addictive or pathological manner
  • 6.2. Obligation to include a message reminding the public about social responsibility or the fight against addiction, adapted to the media or service provider that disseminates the commercial communication and appropriate for the method or type of game. In this regard, guidelines will be agreed for complying with this obligation
  • 6.3. Prohibition of commercial communications or self-promotions that exploit suffering or suggest that gambling enables players to escape from personal, professional or educational problems, from loneliness or depression
  • 6.4. Prohibition to suggest that gaming can be a solution to financial problems
  • 6.5. Prohibition to lead people to believe that excessive gambling losses do not have any consequences
  • 6.6. Prohibition to present gaming as a way to recover financial gambling losses
  • 6.7. Prohibition to offer loans to players of a game 
  • 6.8. Prohibition to provide misleading information regarding the possibility to winning and to make people believe that if they repeat the game their chances of winning will increase
  • 6.9. Prohibition to suggest that the player's skill or experience will eliminate the luck factor on which winning depends
  • 6.10. Prohibition to display compulsive gaming behaviour as gratifying
  • 6.11. Prohibition to associate repetitive, uncontrolled or compulsive gaming situations with strong emotions
  • 6.12. Prohibition to encourage uncontrolled betting or risks
  • 6.13. Commercial communications and self-promotions of the activities of bingo, roulette, punto banco (baccarat), blackjack, poker, fixed odds sports or horse racing bets, slot machines and cross bets, will limit the welcome bonuses used in commercial communications to the maximum amount of two hundred euros (€ 200)
 

Age and responsibility messaging  

 

  • 6.14. Commercial communications and visual self-promotions of bingo, roulette, punto banco (baccarat), blackjack, poker, fixed odds sports or horse racing bets, slot machines, and cross/ matched bets activities will include in the advertising mandatory responsible gambling warning logos and prohibition of those under 18 through a standardised warning in accordance with Annex II, deploying a full screen at the end of the advertising for a duration of 2 seconds, that may be replaced or supplemented by the banner provided in Annex III, at the base of the image throughout the announcement and to the format and dimensions provided in the said annex

 

Annex II. Full screen

 

In accordance with the provisions of clause 6.14 of this Code of Conduct, the standardised warning that includes the responsible gambling and prohibition of gambling for those under 18 years of age logos will be the following:

 

 

 

 

Annex III. Banner 

 

In accordance with the provisions of clause 6.14 of this Code of Conduct, the standardised warning provided for in Annex II may be substituted or complemented by the banner shown below, which should be included to clearly legible dimensions on the bottom of the image throughout the advertising

 

 

 

 

 

The gambling authority DGOJ provides the website (in situ above) that addresses responsible gambling: www.jugarBIEN.es

 

 

  • 6.15. Commercial communications and self-promotions of bingo, roulette, baccarat, blackjack, poker, fixed odds sports or horseracing, gambling machines and cross/ matched bets activities will not include the presence of active/ current athletes engaged in gambling activities or endorsing them
  • 6.16. During live broadcasts, by any means, of sporting events, horseracing or any other events of a competitive nature, commercial communications that broadcast bonuses or promotions of any kind may not be made within the broadcast itself

 

7. Protection of minors

 

  • Minors, who are immature, gullible, easy to persuade and open to suggestions, are especially vulnerable to advertising and other commercial communications and, as such, deserve special protection in this area. Consequently, it is forbidden to use commercial communication or self-promotions that:

 

  • 7.1. Suggest that minors can gamble or place bets
  • 7.2. Use or include minors or feature those under 25 years of age
  • 7.3. Directly or indirectly encourage minors to gamble, or exploit the special relationship children have with their parents, teachers or other people including, among  others, those who are recognisable due to their fame and who are featured in children's media or whose work/ activity involves minors. Additionally, it is prohibited to use any visual, audible, verbal or written elements that are specifically addressed to minors and, where appropriate, shall contain a warning about the use of fiction/ dramatisation in commercial communications
  • 7.4. Present gambling as a sign of maturity or symbol of adulthood
  • 7.5. Present gaming as a present a child can give or receive
  • 7.6. Are addressed to children under the age of 18

 

Scheduling rules

 

8. Self-regulatory principles of commercial communications in audiovisual communication services

 

These are scheduling rules versus content rules and are therefore found in the following Channel Section C or collected here; broadcasters will anyway advise

 

9. Self-regulatory principles of commercial communications disseminated via electronic means in information society services

 

  • Besides applying the principles established in Sections 1 to 7 of the Code herein and in Law 34/2002 on Information Society and Electronic Commerce Services, it is established as a specific principle within this area that pop-up advertisements may be easily closed and do not prevent browsing

 

 

1.10 Adjudications

 

Recent adjudications (all sectors) can be found here:

https://www.autocontrol.es/resoluciones-del-jurado/

 

 

  • From the linked database above, we have taken the January 2019 ruling against 888; this is an interesting case because it found that the commercial breaches Rule 6.11 of the code Rule Must not... Associate repetitive, uncontrolled or compulsive gambling situations with strong/ powerful emotions (6.11). The full ruling is here (ES): https://www.autocontrol.es/wp-content/uploads/2018/11/rest2340.pdf. The ruling was that the appeal was to ‘the repetitive game’ (juego, juego, juego) linked to uplift in emotion. The spot uses the actor Carlos Sobera
  • Access to the full ‘Resolutions’ database on the Autocontrol website may require registration/ membership, or be in touch with us via the Contact link on the main website

 

 

https://www.autocontrol.es/wp-content/uploads/2018/11/rest2331.pdf

 

  • This is a relatively straightforward case of infringement of Clause 7 (Protection of Minors) of The Gambling Code of Conduct (EN), shown here because it is not atypical of some of the approaches taken in this genre of Gambling. The (poster) advertising was found to use characters of particular appeal to children; we believe this is the advertising here

 

 

These rules apply to members of EGBA. The full set of 2011 European industry standards is here, and the 2020 Code of Conduct on Responsible Advertising for Online Gambling here

 

4. GENERAL RULES applicable to all sectors

 

  • It's important that the rules for all product sectors, shown below in full under the General tab, are also understood; adjudications against Gambling advertising may well come from general misleadingness or taste and decency rules, for example
  • While advertising regulation is largely a Self-Regulatory system in this context of General rules, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the law says, albeit rules are largely echoed in Self-Regulation

 

4.1. Self-Regulation

 

  • The principal source of rules for all advertising content is Autocontrol’s Code of Advertising Practice (EN)
  • Autocontrol show in loco parentis the ICC Advertising and Marketing Communications Code. Full information under the General tab below
  • Relevant to these General advertising rules is the Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version, EN translation of key provisions here. The Code covers ‘electronic distance communications media’ under the chapters Digital Advertising, Data protection, e-Commerce and Protection of Minors. More under the General tab below, or see the linked files

 

4.2. Legislation

 

  • Cited by authorities as particularly relevant to the Gambling sector in the context of commercial communication are the General Advertising Law 34/1988 (EN 2022), Act 3/1991 on Unfair Competition (EN 2022) and Law No. 29/2009 (EN) on Unfair Competition and Advertising
  • Law 34/1988 on General Advertising, which covers broader aspects of advertising in society such as the portrayal of stereotypes and the protection of children, and Law 3/1991 on Unfair Competition, are Spain’s principal advertising laws
  • Law 7/1996 on Retail Trade EN / ES (2022) principally affects sales promotions and
  • Royal Legislative Decree 1/2007 (RLD 1/2007 ES / EN 2022) in particular article 20, carries information requirements for an ‘invitation to purchase’
  • The above is intended as a ‘snapshot’ of applicable law in advertising in Spain; full information is set out under the General tab below

 

 

 

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

General

SECTION B CONTENT RULES

 

 

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

 

 

1. SELF-REGULATION

 

1.1. Autocontrol’s General Code of Advertising Practice

 

A. Basic principles

B. Authenticity

C. Principle of truthfulness 

D. Rules on certain advertising forms and techniques

E. Protection of Children and Adolescents

F.  Health protection

G. Advertising of credit institutions

Autocontrol Jury Decisions 

 

1.2. Confianza Online Ethical Code

 

2. LEGISLATION
 

2.1. General Advertising Law 34/1988

2.2. Law 3/1991 on Unfair Competition

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

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

 

3. SPECIFIC CLAIM AREAS
 

3.1. Environmental claims

3.1.1. National Self-Regulation, including AC resolutions

3.1.2. International Self-Regulation

3.1.3. Horizontal legislation

3.1.4. EU guidance

3.1.5. Comparative claims

 

3.2. Pricing

3.2.1. Self-Regulation

3.2.2. Legislation

3.2.4. Case law

1. SELF-REGULATION

 

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

 

I. Scope of application 

 

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

 

II. Ethical rules. A. Basic principles

 

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

 

 

B. Authenticity

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

 

C. Principle of truthfulness 

 

  1. Misleading advertising

 

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

 

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

 

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

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

 

 

D. Rules on certain advertising forms and techniques

 

Guarantees/ delivery/ technical data/ comparative tests/ testimonials

 

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

    See further note on testimonials here

 

Autocontrol jury decisions

 

To be updated

 

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

 

Comparative advertising 

 

  1. Exploitation of the reputation of others and Imitation:

 

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

 

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

 

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

 

See also clause 18 above 

Other key clauses (see linked code

 

23. Proof of Advertising Claims

24. Aggressive Advertising 

25. Promotions

26. Common characteristics

27. Campaigns with a social cause

 

 

E. Protection of children and adolescents

 

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

 

F.  Health protection

G. Advertising of credit institutions

 

1. 2. Confianza Online Ethical Code (COEC) 

 

2022 version in Spanish here 

Key provisions translated here 

 

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

 

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

 

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

 

2. LEGISLATION

 

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

 

Applicable in this context

 

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

 

 

2.1. General Advertising Law (34/1988)

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

Misleading omissions (Art. 7)

Considered unfair (Art. 7.1):

 

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

 

Article 9: Acts of denigration

 

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

 

Article 10: Acts of comparison

 

Summary with relevant cases here

 

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

 

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

 

Article 12: Exploitation of the reputation of others

 

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

 

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

 

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

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

 

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

 

‘Invitation to purchase’

 

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

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

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

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

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

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

 

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

 

2.4. Broadcast law; content rules

 

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

 

 

3. SPECIFIC CLAIM AREAS

 

3.1. Environmental claims

 

3.1.1. Self-Regulation (national)

 

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

 

 

Autocontrol resolutions

 

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

 

 

3.1.2. International Self-Regulation

 

 

 

 

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

 

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

 

 

3.1.4. Guidance

 

 

 

3.1.5. Comparative claims

 

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

 

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

 

 

3.2. Pricing

 

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

 

Applicable Self-Regulation and legislation 

 

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

 

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

 

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

 

 

3.2.1. Self-Regulation key clauses

 

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

 

 

3.2.2. Legislation key clauses

 

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

 

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

 

 

Features and presentation of prices (Art. 4)

 

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

 

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

Discount pricing

 

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

 

3.2.4. Case law

 

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

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

Includes key legislation and ICC framework
Includes key legislation and ICC framework
 
  1. THE LAW 


2.1. General provisions from the Unfair Commercial Practices Directive  (UCPD)
2.2 Specific pricing measures 
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
  • No communication should be such as to impair public confidence in marketing

 

Social responsibility (Art. 2)

 
  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
  • Marketing communications should not play on superstition
 

Decency​ (Art. 3)

 
  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned
 

Honesty (Art. 4)

 
  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account
 

 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
     
    • characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
    • the value of the product and the total price to be paid by the consumer
    • terms for delivery, exchange, return, repair and maintenance
    • terms of guarantee
    • copyright and industrial property rights such as patents, trade marks, designs and models and trade names
    • compliance with standards
    • official recognition or approval, awards such as medals, prizes and diplomas
    • the extent of benefits for charitable causes

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code

 

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”)
 

Use of technical/ scientific data and terminology (Art. 9)

 

  • Marketing communications should not
     
  • misuse technical data, e.g. research results or quotations from technical and scientific publications
  • present statistics in such a way as to exaggerate the validity of a product claim
  • use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity

 

 

Use of 'free' and 'guarantee' (Art. 10)

 

  • The term "free", e.g. “free gift” or “free offer”, should be used only
     
    • where the offer involves no obligation whatsoever; or
    • where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
    • in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer
       
  • Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that
  • The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal
  • Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not
  • The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous

 

Comparisons (Art. 11)​

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected

 

 

Denigration (Art. 12)

 

  • Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule

 

 

Testimonials (Art. 13)

 

  • Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant
  • Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used

 

 

Portrayal or imitation of persons and references to personal property (Art. 14)

 

  • Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved

 

Exploitation of goodwill (Art. 15)

 

  • Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution
  • Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent

 

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time

 

 

Safety and health (Art. 17)

 

  • Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards
  • Instructions for use should include appropriate safety warnings and, where necessary, disclaimers
  • Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk
  • Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary
  • Such health and safety warnings should be made clear by the use of pictures, text or a combination of both

 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)

 

 

D1. Honest and truthful presentation

 

  • Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge
  • Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry
  • An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments
  • Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made
  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling

 

 

D2. Scientific research

 

  • Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence
  • Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 9 of the Code - Use of technical/ scientific data and terminology)
  • An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence

 

 

D3. Superiority and comparative claims

 

  • Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose
  • Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative
  • Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging

 

 

D4. Product life-cycle, components and elements

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life cycle analysis
  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code

 

 

D5. Signs and symbols

 

  • Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as to falsely suggest official approval or third-party certification

 

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described

 

 

D7. Responsibility

 

  • For this chapter, the rules on responsibility laid down in the general provisions apply (see article 23)

 

 

 

Additional guidance

 

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

  • Special care should be taken in marketing communications directed to or featuring children or teens
     
    • Such communications should not undermine positive social behaviour, lifestyles and attitudes
    • Products which are illegal for children or teens to purchase or are unsuitable for them should not be advertised in media targeted to them
    • Marketing communications directed to children or teens should not be inserted in media where the editorial matter is unsuitable for them

      For rules on data protection relating specifically to children’s personal data see article 19

      For other specific rules on marketing communications with regard to children:

       
    • with respect to direct marketing and digital marketing communications see chapter C, article C7
    • within the context of food and non-alcoholic beverages see the ICC Framework for responsible food and beverage marketing communications

 

 

18.2. Inexperience and credulity of children

 

Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:

 

  1. When demonstrating a product’s performance and use, marketing communications should not
     
    1. minimise the degree of skill or understate the age level generally required to assemble or operate products
    2. exaggerate the true size, value, nature, durability and performance of the product
    3. fail to disclose information about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described
       
  2. While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy
  3. Marketing communications directed to children should be clearly distinguishable to them as such
 

 

18.3. Avoidance of harm

 

  • Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic

 

 

18.4. Social values

 

  • Marketing communications should not suggest that possession or use of the promoted product will give a child or young person physical, psychological or social advantages over other children or teens, or that not possessing the product will have the opposite effect
  • Marketing communications should not undermine the authority, responsibility, judgment or tastes of parents, having regard to relevant social and cultural values
  • Marketing communications should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them
  • Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget
  • Marketing communications which invite children and young people to contact the marketer should encourage them to obtain the permission of a parent or other appropriate adult if any cost, including that of a communication, is involved

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page 

 

Applicable Self-Regulation and legislation 

 
  • ICC Framework for Responsible Food and Beverage Marketing Communications here
  • The EU Pledge, enhanced July 2021 effective Jan 2022
  • Regulation 1924/2006 on nutrition and health claims made on foods
  • Regulation 432/2012 establishing a list of permitted health claims on food 
  • Regulation 1169/2011 on the provision of food information to consumers
  • Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page of this website 

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:

 

  1. it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages
  2. it shall not link the consumption of alcohol to enhanced physical performance or to driving
  3. it shall not create the impression that the consumption of alcohol contributes towards social or sexual success
  4. it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts
  5. it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light
  6. it shall not place emphasis on high alcoholic content as being a positive quality of the beverages

 

 

 

2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)

 

In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document which covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA

 

Article 6. Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

(a) the existence or nature of the product

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

(e) the need for a service, part, replacement or repair

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions

(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face

 

2.   A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

 

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
 

(i) the commitment is not aspirational but is firm and is capable of being verified, and

(ii) the trader indicates in a commercial practice that he is bound by the code

 

 

Article 7. Misleading omissions

 

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, 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

 

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence

(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

1. Claiming to be a signatory to a code of conduct when the trader is not

2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation

3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have

4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

9. Stating or otherwise creating the impression that a product can legally be sold when it cannot

10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer

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)

13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not

16. Claiming that products are able to facilitate winning in games of chance

17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations

18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not

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

 

 

Aggressive commercial practices

 

26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC

28. 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. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

  • there is no prize or other equivalent benefit, or
  • taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

2.2.1. Article 3 (4) of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

Article 3

 

1.  The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.

2.   Member States may decide not to apply paragraph 1 to:

 

  • products supplied in the course of the provision of a service
  • sales by auction and sales of works of art and antiques

 

3.   For products sold in bulk, only the unit price must be indicated

4.   Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

1.   The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited

2.   The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

1.   Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion

2.   With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

 (d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

 

Article 7

Misleading omissions

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable

 

Annex I

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product ('bait and switch')

 

 

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2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Content rules excluding Alcohol (see pt. 1.5 above) in audiovisual commercial communications

 

 

Article 9

 

  1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited
  2. audiovisual commercial communications shall not use subliminal techniques
  3. audiovisual commercial communications shall not

 

  1. prejudice respect for human dignity
  2. include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  3. encourage behaviour prejudicial to health or safety
  4. encourage behaviour grossly prejudicial to the protection of the environment

 

  1. all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers, shall be prohibited
  2. audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

  1. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22 (see pt. 1.5 above)

 

The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C - TV INC VOD & RADIO

 

 

The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN) channel rules extracted here (ES / EN)

 

APPLICABLE LEGISLATION AND SELF-REGULATION

 

  • Royal Decree 958/2020 linked above. The Decree introduces significant new restrictions, including the confining of some Gambling AV communications to a time frame of 0100-0500 hrs.
  • Art. 9 (1c) and Art. 9 (2b) on Promotion from Ministerial Orders (EN) regulating these gambling activities Scope Poker, Bingo, Roulette, Black Jack, Baccarat, Complementary Games, Slot Games, Fixed Odds Betting on Sports, Fixed Odds betting on horse racing, Other fixed odds betting, Pool betting on sports, pool betting on horse racing, exchange betting (on sports, horse racing, and other events), and Contests; applicable to those gambling activities carried out through electronic, computer, telematic or interactive means meaning the Internet, TV, telephone (landline/mobile), other interactive means where in-person participation is ancillary
  • Art. 9 (5) Ministerial Order on Fixed Odds Sports Betting MO EHA 3080/2011 (ES) and Ministerial Order on Exchange Betting MO HAP/1369/2014 (ES)
  • Code of Conduct for Commercial Communication of Gambling Activities Principle 8: Self-Regulatory principles of commercial communications in audiovisual communication services. English translation of Principle 8 here. Note that Principle 7 prohibits any targeting of Under 18s
  • The General AV Law 13/2022 (EN key clauses inc. 2022 amends) carries gambling-specific rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context

 

STANDARD RULES 

 

  • The Content rules set out in our earlier Section B apply in this channel; principal sector rules are from the Royal Decree 958/2020 linked above and The Gambling Code of Conduct (EN unofficial)
  • The Gambling sector must also observe the ‘General’ rules that apply to all sectors. These are set out in full under the General tab below; the core set of rules is Autocontrol’s Code of Advertising Practice (EN)
  • The general channel (i.e. placement) rules also apply. These are shown under the General tab below and include e.g. rules for product placement and for programme sponsorship, albeit Gambling placement rules are more severe 

 

SPECIFIC RULES 

 

Decree 958/2020:

 

Article 18. Commercial communications in audiovisual communication services

 

  1. Gambling operators’ commercial communications in audiovisual communication services may only be issued between 01:00 and 5:00, without prejudice to the special rules established in articles 19 to 22
  2. The time restrictions that are set in this rule and in articles 20 to 22 will only be applicable to commercial communications from gambling operators in on-demand audiovisual communication services in accordance with the provisions of audiovisual legislation, when these communications are distinguishable and separable from the programming carried out in those services. Also, The rules set forth in article 19 shall apply for the dissemination of commercial communications during live events if they are broadcast via on-demand services

 

Article 19. Rules for the distribution of commercial communications during live events in audiovisual communication services

 

  1. Gambling operators’ commercial communications in audiovisual communication services during live broadcasts of sporting, horse riding or other events of a competitive nature, may only be broadcast between 01:00 and 5:00, without prejudice to the special provisions established in articles 21 and 22
  2. The provisions of section 1 are applicable to commercial communications of any kind, distributed or physically located, which are contained within the audiovisual broadcast

 

 

Article 20. Rules for the distribution of commercial communications of mutual bets, pre-drawn or instant lotteries and bingo in audiovisual communication services

 

  • Commercial communications from gambling operators in audiovisual communication services relating to mutual bets, instant lotteries and the game of bingo may not be issued within the reinforced protection time slots established in article 7.2 of Law 7/2010, of March 31, nor neither in the advertising breaks immediately before or after programmes targeted specifically or mainly to children
  • These time slots will only be applicable when the operator does not hold singular licenses associated with the types of games to which the audiovisual broadcasting rules set out in article 18 apply

 

Article 21. Rules for distribution of commercial communications of competitions in audiovisual communication services

 

  1. Gambling operators’ commercial communications in audiovisual communication services related to competitions may not be broadcast in the advertising breaks immediately before or after programs specifically or mainly aimed at children
  2. When dissemination of competitions is included in a programme whose age rating is “not recommended for minors under eighteen years of age” it can only be broadcast between 10:00 pm and 6:00 am the next day, as long as audiovisual legislation allows it
  3.  If the competition is implemented through audiovisual content, via any channel, the Information on the price of participation must be provided in the invitation to participate and, when the medium that sets out the competition allows it, during  the whole time of the promotion or the publicity of the competition. The information should be presented superimposed in static form and in a style, arrangement and contrast of typeface that allow its perfect visual presentation or perception. The size of the characters will not be smaller than that used to inform of the means of participation or, where appropriate, the payment thereof
  4. The obligation established in article 10.3. (responsibility messages) will not apply to the commercial communications of competitions disseminated through radio audiovisual communication services

 

Article 22. Rules for the distribution of commercial communications for delayed-result lotteries and raffles in audiovisual communication services

 

  • In audiovisual communication services, commercial communications related to games of a delayed result lottery, including those of an occasional nature, as well as those related to raffles, may not be broadcast in the advertising blocks immediately before or after programmes targeted specifically or mainly to children

 

Ministerial orders

 

  • Article 9 (1c) on Promotion from Ministerial Orders (EN) in Article 7 of Law 13/2011, the advertising, sponsorship or promotion of gambling activities by gambling operators, as well as the advertising or the promotion of the gambling operators, should be carried out according to the following criteria: c) In the case of audio-visual media broadcasts, the relevant provisions applicable to commercial communications in General Law 7/2010 on Audiovisual Communication (EN) should be respected and in particular the provisions of Article 7 on the rights of the minor. Note: the referenced law is repealed effective May 2022 by the General AV Law 13/2022 ES / EN key clauses 
  • Article 9.2 (b): The gambling operator can carry out promotional activities for offering games/ gambling activities that it markets and can offer bonuses/ discounts for player registration or participation provided that such practices do not contravene the provisions of General Law on Audiovisual Communication 7/2010 (see above note). Royal Decree 958/2020 prohibits promotional marketing aimed at new customers and will take precedence 
  • Article 9 (5): Operators of live/ in-play fixed odds betting and exchange betting (covering sports, horse racing and other events) can advertise bets in the medium which is broadcasting the event upon which the bets are based, done simultaneously (i.e. during the live transmission of the event) and without the need for a break. (GRS note: this provision will apply predominantly to audiovisual media; the corresponding provision in 8.4 of the Self-Regulatory code below additionally covers pool betting on sports/ horse racing, and fixed odds betting on horse racing, although the Ministerial Orders of the same do not reference live/ in-play advertising in Art. 9). See rules re live events from Royal Decree 958/2020 above

 

SELF-REGULATION

 

Principle 8. Self-regulatory principles of commercial communications in audiovisual communication services 

 

See the Code (EN unofficial) for full provisions 

 

  • Besides respecting the provisions applicable to commercial communications and self-promotion contained in the General Law 7/2010 on Audiovisual Communication and, in particular, the provisions of Article 7 on children's rights, special attention will be paid to when the gaming advertisements and self-promotions are broadcast, as well as taking into account the programmes or television blocks that are mainly or specifically addressed to children during which the advertisements are inserted
  • For the purposes of the Code, programmes addressed to children will be understood as those classified and marked as "especially recommendable for children" and "not recommended for children under 7", pursuant to the self-regulatory code on television content and children, referred to in Article 7 of the previously mentioned Law
  • Consequently, in accordance with the nature of the gaming method or type and the potential damage for the participant, the following principles are established:

 

8.1. The following may only be broadcast between 22.00 and 06.00:

 

Royal Decree 958/2020 changes the permitted timeframe to 0100-0500 hrs. and will take precedence. The Code is required to be updated by May 2021

 

  • 1.1. Commercial communications and self-promotions of roulette, baccarat, blackjack, poker, and all fixed odds bets related to sports or horse racing, notwithstanding what is stated in point 4 referring to the broadcasting of live events.  Nevertheless, this time frame/ watershed (scheduling restriction) will not be applicable to gambling advertisements mentioned in this paragraph broadcast by radio, although those radio advertisements may not be broadcast during the time slots with enhanced protection  established in Article 7.2 of General Law 7/2010  on Audiovisual Communication
  • 1.2. Commercial communications and self-promotions for contests included in a programme classified as 'not recommended for children under the age of 18'
  • 1.3. Commercial communications and self-promotions whose content could affect the physical, mental or moral development of minors
  • 1.4. Self-promotions of programmes dedicated to games of chance and betting that can only be broadcast between 01.00 and 05.00 in the morning, in accordance with article 7.2 of General Law 7/2010 on Audiovisual Communication

 

  • 2. Commercial communications and self-promotions that advertise bingo, parimutuel betting and other bets shall be broadcast outside the time frame with extra protection established in Article 7.2 of the previously mentioned Law 7/2010, and shall not be broadcast within or next to children's programmes, notwithstanding the provisions of point 4
  • 3. Commercial communications and self-promotions advertising contests included in a programme whose age classification “not recommended for children under 18”, lotteries with a delayed effect, complementary games and raffles will have no time frame restriction provided they are not broadcast next to or inserted into programmes mainly or specifically addressed to children
  • 4. In the cases of live sports or horse racing bets, parimutuel or fixed odds betting, it will also be possible to broadcast commercial communication or self-promotions during the transmission of sporting events, from the moment they begin until they end, including the regulatory intervals or commercial breaks, as long as they correspond to the betting organisation which offers them, whether they are about the event being transmitted or about other events that fit into the same sports competition, even if they are not being broadcast at that moment
  • 5. Sponsors shall respect the conditions established in General Law 7/2010 on Audiovisual Communication and in Royal Decree 1624/2011

WELCOME BONUSES AND PROMOTIONS: RADIO

 

Promotional marketing aimed at new customers is prohibited under the terms of RD 958/2020; the Code of Conduct is required to be in line with the decree by May 2021. Meanwhile, the Decree applies 

 

  • For welcome bonuses advertised on radio commercials lasting less than 6 seconds, the information referenced in clause 4.4 of the Gambling Code of Conduct (EN) should be implemented in the following way:

 

  1. Reference should be made in the communication that the bonuses are subject to conditions (i.e. 'bono sujeto a condiciones') available on the gambling operator’s website
  2. Conditions of the promotional bonus should be shown separately from the other terms and conditions displayed on the website
  3. In all cases, the content of the initial marketing communication must not be likely/ liable to mislead

 

LIVE BROADCASTS 
 
  • During live broadcasts, by any means, of sporting events, horseracing or any other events of a competitive nature, commercial communications that broadcast bonuses or promotions of any kind may not be made within the broadcast itself (Art. 6.16 of the Gambling Code of Conduct)
  • Royal Decree 958/2020 confines transmission of Gambling marcoms in live broadcasts to the hours 0100-0500 (Art. 19)

REGIONAL (OFFLINE) GAMBLING 

 

  • On the advertising of land-based gambling activities and operators, a number of the 17 Autonomous Communities have rules specific to audiovisual media communications of local broadcasters. In the case of Aragon for instance, Decree 166/2006 approving the Regulation of Gambling Advertising requires that Audiovisual media advertising broadcasts may only contain images of the main façade of the establishments falling within the scope of this Regulation and images and general panorama of the gambling, which must, in this case, be free of people/ public Art. 9 (4)

 

 

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General

SECTION C: TV & RADIO/ AV

 

 

APPLICABLE LEGISLATION

 

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

 

STANDARD RULES 

 

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

 

PROHIBITIONS

 

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

RIGHTS OF THE MINOR

 

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

 

 ADVERTISING DURING A SPORTING EVENT

 

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

 

PRODUCT PLACEMENT 

 

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

 

SPONSORSHIP

 

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

 

 

 

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International

SECTION C TV/AV AND RADIO

 

 
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 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

 

 

SPONSORSHIP (from the ICC Code) 

 

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

 

LEGISLATION KEY CLAUSES 

 

Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content

 

 

Article 9

 

1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
  2. Audiovisual commercial communications shall not use subliminal techniques
  3. Audiovisual commercial communications shall not:

 

  1. Prejudice respect for human dignity
  2. Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  3. Encourage behaviour prejudicial to health or safety
  4. Encourage behaviour grossly prejudicial to the protection of the environment

 

  1. All forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;
    shall be prohibited
  2. Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. Audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below

 

2.  Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.

4.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5.  Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).

 

Article 4a is found here 

 
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2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN) channel rules extracted here (ES / EN)

 

STANDARD RULES 

 

  • There are no gambling advertising rules specific or exclusive to these channels on a national level; content rules set out in Section B above apply. A warning/ responsibility message is required in Gambling marcoms. See Content Section B
  • Principal content rules are from the Royal Decree 958/2020 linked above and the Gambling Code of Conduct (EN) and, for General rules applicable to all sectors Gambling included, Autocontrol’s Code of Advertising Practice (EN) 

 

SPECIFIC RULES

 

Decree 958/2020

 

These channels fall under the definition of ‘face-to-face media’ provided in the Royal Decree’s article 3 (h): that which is carried out via billboards, canopies, posters, monitors, screens, or any others of a similar nature, both movable and immovable; that which is affixed on moving elements and means of transport, whether public or private; that which is broadcast through public address systems; as well as that which is disseminated in brochures, or in magazines, newspapers or similar media

 

Article 17. Commercial communications through face-to-face media

 

  1. Carrying out face-to-face commercial communications of the gambling activities developed under the qualifying titles regulated in Title III of Law 13/2011 of May 27 will require adjusting, in addition to the state regulations on commercial communications, to the regulation on gambling advertising through those same media applicable to the entities authorised by the Autonomous Communities to offer these kinds of activities
  2. In the case of operators of the legal reserve set out under the requirements of the first additional provision of the Law 13/2011 of May 27th, the implementation of face-to-face commercial communications of gambling activities carried out by said operators will resort exclusively to the state regulations on commercial communications
  3. In any event, face-to-face commercial communications that are carried out in application of a specific sports sponsorship within sports facilities, or those that are disseminated in magazines, newspapers or similar media at a state level and whose main activity is the offer of products or information about the gambling  activities defined by Law 13/2011 of May 27, are exempted from the provision under article 1 (What that means is that  communications within sports facilities or published in magazines, newspapers or similar media that are part of a wider national sponsorship arrangement are not required also to observe the regional advertising regulations on advertising, only the national rules)
  4. Commercial communications sent through postal mail are prohibited

 

CINEMA

 

Media Self-Regulation

 

 

Cinema Advertising and Protection of Children (Art. 6)

(General rules, not gambling-specific, but applicable)

 

  • 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)
 

Autonomous communities

 

  • Regional level (offline/ land-based gambling): Some of the Autonomous Communities have rules specific to gambling advertising in cinema channel. The general rule is that gambling advertising can be shown provided the featured film is rated 18+
  • For example, in Valencia, cinema ads can show images of the façade and outside facilities of the gambling venues, as well as the inside of gambling halls provided they are completely free of people who are actively betting; people are permitted to be shown provided they are extras/ bystanders and the recording takes place outside of opening hours. Cinema ads can be screened outside the watershed (10pm-6am) provided the film alongside which the ads appear is rated 18+. (Art. 8 - Decree 190/2014 of 14 Nov, of the Counsel, approving the rules regulating the advertising of Gambling in the Community of Valencia)

 

PRINT

 

Press, magazines & promotional literature, e.g. leaflets, brochures, catalogues etc.

 

  • Various regulatory sources prohibit for Gambling advertising the depiction and targeting of minors, e.g. the Gambling Code of Conduct (EN unofficial) establishes in Article 7: It is forbidden to address commercial communications to children under the age of 18
  • The Gambling content rules set out in Section B, together with the advertising rules for all sectors, will apply

 

OUTDOOR

 

  • Various regulatory sources prohibit for Gambling advertising the depiction and targeting of minors
  • A specific reference to Outdoor is from the EU Recommendation 2014/478/EU:

 

  1. Member States should encourage that commercial communications are not broadcast, displayed or facilitated:

 

  1. In media, or around programmes, where minors are expected to be the main audience
  2. On websites with minors as the audience profile
  3. In close proximity of places where minors normally spend time and are expected to be the main audience including at least schools (emphasis ours)

 

Regional

 

  • In terms of rules governing outdoor advertising away from state-managed motorways, local/ regional rules from 17 Autonomous Communities will apply. A number of the Autonomous Regions have rules specific to outdoor advertising of land-based gambling activities and operators. In general, static advertising is permitted subject to prior notification approval of regional DG for gambling. The content of the advert is usually restricted to informational content such as the name of the premises, its address, opening hours and additional services
  • Autonomous legislation also includes restrictions on advertising within a certain distance of schools

 

 

 

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

General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

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

 

Special rules

 

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

 

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

 

Advertising of alcoholic beverages (Art. 7)

 

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

 

 

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

 

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

 

OUTDOOR

 

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

In the context of roadside static advertising:
 

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

 

 

Autonomous regional legislation

 

 

 

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

 

 

 

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

International

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:

 

 

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').

 

 

Legislation key clauses 

 

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

 

 

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

3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN) channel rules extracted here (ES / EN)

 

Privacy issues should be reviewed with specialist advisors

 

We show in this section the broad picture for rules for Gambling marcoms in digital channels in Spain. The influence of legislation on digital commercial communications is significant, especially relating to issues of privacy. Full information under the General tab below. More specific digital channels such as OBA, Email etc. follow under separate headers 

 

CORE RULES 

 

  • Various regulatory sources prohibit for Gambling advertising the depiction and targeting of minors: Principle 9 of The Gambling Code of Conduct (EN) commercial communications disseminated via electronic means in information society services; also Principle 7 Protection of Minors establishes: It is forbidden to use commercial communication addressed to children under age of 18. 
  • The Content rules set out in Section B apply online, both the Gambling-specific and the General rules, i.e. those that apply to all sectors; principal sources of rules for Gambling marcoms are the Royal Decree 958/2020 linked above and the Gambling Code of Conduct also linked; the latter was required to reflect the Royal Decree by May 2021
  • Article 9 (2b; EN) Ministerial Orders for regulated gambling activities: the gambling operator can carry out promotional activities for offering games/ gambling activities that it markets and can offer bonuses/ discounts for player registration or participation provided that such practices: b) do not contravene the provisions of Law 34/2002 on information society services (EN key clauses here; see arts. 20, 21, 22). Royal Decree 958/2020 article 13 prohibits promotional marketing to new customers and takes precedence
  • The General AV Law 13/2022 (EN key clauses inc. 2022 amends) carries gambling-specific rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context

 

GAMBLING MARCOMS RULES SPECIFIC TO ONLINE 

 

Royal Decree 958/2020 article 23. Commercial communications in information society services

 

  1. The distribution of gambling operators’ commercial communications in information society services is prohibited, except in the following cases:

 

  1. When they are located on the web pages or applications of the operators or the  communication media that support competitive games, in the latter case exclusively regarding this type of game
  2. When they are located on web pages or applications whose main activity is the offer of products or information on gambling activities defined by Law 13/2011, of May 27, as long as these web pages or applications have mechanisms to prevent access to minors and periodically disseminate messages about safe gambling. To that end, the video exchange services via  the platform and social networks are not considered web pages or applications as provided in this paragraph

 

Those web pages or applications whose main activity is to offer information about sporting or equestrian events may create a specific and differentiated section devoted to offering information on betting, as long as that section:

 

  1. Is accessible from the home page through a single small informational link. In this context, the Gambling authority may establish by resolution the specifications regarding the shape, size or arrangement of the aforementioned connection
  2. Have mechanisms to prevent access by minors
  3. Periodically disseminate messages about safe gambling

 

  1. When they are the result offered by search engines. In those cases where the result offered is because of a commercial agreement between the advertiser and the search engine owner, only when that search uses words or phrases directly connected to the gambling activities defined by Law 13/2011, of May 27.
  2. When sent via email or other equivalent means, in accordance with the provisions of article 24
  3. When they are distributed as commercial audiovisual communications in video sharing services through the platform according to the provisions of article 25
  4. When they are distributed on social networks, per article 26 provisions

 

  1. For the purpose of facilitating the functioning of parental control mechanisms, gambling operators’ commercial communications in information society services will incorporate an identifier that enables gambling-related recognition
  2. Gambling operators’ commercial communications in information society services will not overlap the main content of the page or application, blocking the major part of said content, without there being a prior action of the user, with the exception of those that are developed exclusively in the operator's own portal. In any case, communications commercials will never block navigation and must be able to be closed or its execution stopped easily
  3. Commercial communications from gambling operators may not be located on web pages or applications that, in turn, promote gambling activities of entities without an enabling title in Spain, presenting them as aimed at residents in Spain, or on web pages or applications whose content violates the applicable intellectual property regulations

 

WELCOME BONUSES AND PROMOTIONS 

 

Promotions to attract new customers are prohibited whatever the conditions of the promotion (Art. 13 Royal Decree 958/2020)

 

  • For welcome bonuses advertised on internet banners/ micro-banners, the information referenced in clause 4.4 of the Gambling Code of Conduct (EN unofficial) should be implemented as follows:

 

  • Reference should be made in the communication that the bonuses are subject to conditions ('bono sujeto a condiciones') available on the gambling operator’s website
  • Conditions of the promotional bonus should be shown separately from the other terms and conditions displayed on the website. In the case of banners and micro-banners, the marketing communication must include a link to such as a landing page which becomes a mandatory step for a user prior to registration or gambling
  • In all cases, the content of the initial marketing communication must not be likely/ liable to mislead
  • In the case of bonuses/ vouchers advertised via micro-banners, if the inclusion of the caption 'bono sujeto a condiciones' cannot be inserted due to limited space and the static nature of the medium, the hyperlink must lead in every case to the landing page mentioned in para. 2

 

GENERAL ONLINE CHANNEL SELF-REGULATION 

 

  • The Gambling sector must also observe the ‘General’ Content rules that apply to all sectors. Those are set out in full under the General tab in Section B; the core set of rules is Autocontrol’s Code of Advertising Practice (EN)
  • The general channel (i.e. placement) rules also apply. These are set out below under the General tab. Principal source of rules in the Online channel in all forms is Autocontrol’s Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version; translation of key provisions here
  • 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 English translation here. The Code applies to all sectors, and defines when Influencer advertising qualifies as such and sets out identification requirements. Our assumption is that the use of Influencers would anyway not be permitted under the new rules, as Influencers would presumably fall under the description: people or characters of relevance or public profile, use of whom is prohibited in commercial communications (art. 15, RD). We suggest you get in touch with Autocontrol before any commitment

 

GENERAL ONLINE CHANNEL LEGISLATION  

 

  • There is extensive channel legislation applicable in electronic marketing communications, in three principle areas, covered in depth under the General tab. ‘Snapshot’ immediately below

 

  • E-Commerce: Law 34/2002 on Information Society Services and electronic commerce known as LSSI or LSSICE (EN / ES). Title III Electronic Commercial Communications, Articles 8, 10, 19, 20. Scope is set out in the annex of the linked document
  • 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
  • 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 companies, but which carries under article 20 the rules on advertising that constitutes an 'Invitation to Purchase.'
  • Law 3/1991 on Unfair Competition (EN key clauses inc. 2022 amends), carries the core European legislation on commercial practices/ communications from the Unfair Commercial Practices Directive 2005/29/EC and the amends introduced by Directive 2019/2161 related to search rankings, consumer reviews and international marketing; see arts. 26/27 and 5 of Law 3/1991 
  • The General AV Law 13/2022 (EN key clauses inc. 2022 amends), while applicable to all sectors, also carries gambling-specific scheduling rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context
 

REGIONAL 

 

Land-based/ offline gambling

 

Some of the 17 autonomous communities have rules on the online advertising of offline/ land-based gambling activities and operators, particularly in regard to the websites of gambling operators

 

 

 

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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

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

 

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

 

KEY RULES

 

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

 

APPLICABLE LEGISLATION 

 

Non-exhaustive

 

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

 

SELF-REGULATION 

 

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

 

INTERNATIONAL/ GUIDELINES 

 

 

E-commerce information requirements (from legislation)

 

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

 

 

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

International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

  • 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 

 

Self-Regulatory clauses 

 

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
 

C7. Marketing communications and children

 

  • Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
  • Personal data about individuals known 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 support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
  • Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children

 

C10. Respect for the potential sensitivities of a global audience

 

  • Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
     

(a) The name of the service provider

(b) The geographic address at which the service provider is established

(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner

(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register

(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority

(f) As concerns the regulated professions:
 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
 

  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

 

 

Directive 2018/1808 amending the AVMS Directive 

 

  • Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

  • For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications  

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

  • Recognises the global nature of digital media and the need to develop a coordinated response across EASA’s membership
  • Provides clear guidance to EASA’s SRO members on how to determine whether content under review is a marketing communication in the digital space
  • Encourages local SROs and advertising industry representatives to ensure that the self-regulatory remit at national level is aligned with the recommendations set out in this document
  • Identifies a non-exhaustive list of digital marketing communications practices which are recommended to be in the SRO’s remit
  • Identifies forms of digital content which lie outside of SRO’s remit under all circumstances

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • While there no rules particular to the Gambling sector’s use of Cookies, commercial communications that are addressed/ directed to children under the age of 18 are prohibited (7.6 Gambling Code of Conduct)
  • The general cookie rules, i.e. those that apply to all sectors, Gambling included, are shown below under the General tab

 

The Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN) channel rules extracted here (ES / EN)

 

OBA

 

  • Various regulatory sources prohibit for Gambling advertising the depiction and targeting of minors: Principle 9 of The Gambling Code of Conduct (EN unofficial) commercial communications disseminated via electronic means in information society services; also Principle 7 Protection of Minors establishes: It is forbidden to use commercial communication addressed to children under age of 18
  • OBA, like any other advertising, is subject to the Content rules for Gambling set out in our earlier Section B, as well as the content and channel rules for all sectors shown under the General tab
  • Principal sources of rules for Gambling marcoms are the Royal Decree 958/2020 linked above and the Gambling Code of Conduct (required to be in line with the Royal Decree by May 2021) also linked above, and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN) 
  • The Royal Decree carries some placement rules specific to information society services; these have been set out under the preceding header Online Commercial Communications 
  • Signatories to the Gambling Code of Conduct must incorporate the warning/ responsibility message in commercial communications; see Content Section B, point 2.6; see also articles 10 and 11 of Royal Decree 958/2020 (EN)
  • General Channel rules, i.e. those that apply to all sectors Gambling included, are primarily from Autocontrol’s Confianza Online Ethical Code ES. The link is to the 2022 Spanish version, translation in hand
  • OBA specifics from this Code are shown below under the General tab, together with the Self-Regulatory programme from the EDAA
  • The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors

 

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

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

 

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

 

Applicable legislation 

 

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

 

 

Self-Regulation

 

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

 

Use of cookies and and similar devices 

 

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

 

OBA/ THIRD PARTY COOKIES 

 

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

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

Effective 19 January 2022

 

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

 

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

 

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

 

GDPR AND PROFILING

 

 

International Self-Regulation

 

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

 

 

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

 

Application in Spain 

 

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

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

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

From Reed Smith LLP/ Lex May 2022 

The European ‘Cookie Monster’ - Digital services and cookies under scrutiny

From Freshfields Bruckhaus Deringer LLP/ Lex August 2022

Data protection update Stephenson Harwood LLP/ Lex. European Union, France, United Kingdom, USA November 2, 2022

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 04/2012 on Cookie Consent Exemption here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
  • Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR 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

 

 

Legislation

 

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)

 

GDPR

 

  • The introduction of the GDPR 2016/679 from May 25, 2018: in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules apply. GDPR/ privacy issues should be overseen by legal advisors

 

2. OBA 

 

The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

 

  • Any third party participating in OBA should adhere to principles of notice and user control as set out below
  • Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
  • The following guidance provides further clarification for how these principles apply to OBA

 

C22.1. Notice

 

  • Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
  • Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
  • Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices

 

C22.2. User control

 

  • Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)

 

C22.5. Data security

 

  • Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
  • Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent

 

C22.6 Children

 

  • Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent

 

C22.7. Sensitive data segmentation

 

  • In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

*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

 

European Self-Regulatory programme for OBA

 

  • A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
  • EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

 

 
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5. Emails & SMS

Sector

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); channel rules extracted here (ES / EN)

 

KEY RULES 

 

  • Commercial communications addressed/ directed to children under the age of 18 are prohibited (7.6. Gambling Code of Conduct)
  • The Content rules set out in Section B apply - both the Gambling-specific and the General rules, i.e. those that apply to all sectors; see General tab under Content Section B
  • Principal sources of rules for Gambling marcoms are the Royal Decree 958/2020 linked above and the (unofficial EN) Gambling Code of Conduct (required to be in line with the Royal Decree by May 2021), and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN) 
  • Principle 9 (Self-regulatory principles of commercial communications disseminated via electronic means in information society services) of the Gambling Code of Conduct linked above states: ‘Besides applying the principles established in Sections 1 to 7 of the Code herein and in Law 34/2002, of 11 July, on Information Society and Electronic Commerce Services, it is established as a specific principle within this area that pop-up advertisements may be easily closed and do not prevent browsing’. This rule may not apply to emails per se, though these can form part of an ‘information society service.’
  • The warning/ responsibility messages (see our earlier Section B) will be required
  • The Royal Decree carries some placement rules specific to information society services under article 23; these have been set out under the preceding header Online Commercial Communications; gambling commercial communications are permitted when ‘When sent via email or other equivalent means, in accordance with the provisions of article 24.’ This follows:

 

  1. Sending commercial communications from gambling operators via email or other equivalent electronic means of communication may only be carried out with the consent of the interested person, in accordance with the provisions of article 7.2.a) of Law 13/2011, of 27 May, and in article 21.1 of Law 34/2002, of July 11, on Information Society Services and Electronic Commerce
  2. Gambling operators that market games whose participation requires the  previous opening of a user registration will not be able to send any type of commercial communication through electronic mail or other equivalent electronic means of communication addressed to:

 

  1. Persons whose registration in the General Register of Bans on Access to Gambling is disclosed to the operator by the gambling authority
  2. Persons who have exercised their ability to self-exclude
  3. Persons who have developed risky behavior, according to the systems and detection protocols provided for in article 34

 

The prohibitions set out in this section will be implemented from 00:00 hours of the second day after the date on which the self-exclusion registration in the General Register of Prohibitions of Access to Gambling, or the detection of a person who has developed a risky behaviour.

These prohibitions will not apply from the day following that on which these people cease to be registered in the General Register of Gambling Access Bans, cease to be excluded, or are no longer classified as players with risky behaviour

 

  • The general channel (i.e. placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in Spain reflects the applicable Directives 2002/58/EC in being opt-in / soft opt-in and E-Commerce rules from 2000/31/EC. Specifics under the General tab below
  • The self-regulatory Confianza Online Ethical Code (COEC), updated February 2022 ES / EN key clauses also applies; the code covers 'electronic distance media’ and includes rules on data protection, e-commerce, protection of minors and digital advertising 
  • The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors
  • If a marketing communication constitutes an ‘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 Royal Decree 1/2007 ES / EN applies; article 20. More below under the General tab

 

 

From the EU Recommendation (not binding, but significant)

 

  • 43. Commercial communications should not target vulnerable players in particular by making use of unsolicited commercial communications addressed to players who have self-excluded from gambling or have been excluded from receiving online gambling services on reasons of problem gambling (Commission Recommendation 2014/478/EU)

 

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

STANDARD RULES 

 

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

 

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

 

1. APPLICABLE LEGISLATION

 

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

 

2. APPLICABLE SELF-REGULATION 

 

 

DATA PROTECTION: EDPB GUIDANCE

 

 

1.1. E-COMMERCE / INFORMATION SOCIETY SERVICE

 

(Art. 20 LSSI) Key clauses 

 

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

 

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

1.2. CONSENT AND OPT-OUT 

 

Key clauses

 

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

1.3 PERSONAL DATA; B2C solely

 

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

 

1.4. HARASSMENT

 

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

 

2.1. THE CONFIANZA ONLINE ETHICAL CODE  (COEC)

 

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

 

 

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

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • 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:

 

 

Article 19 ICC Code: Data protection and privacy

 

  • 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 

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

 

  1. The name of the service provider
  2. The geographic address at which the service provider is established
  3. The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
  4. Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
  5. Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. As concerns the regulated professions

 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

  1. Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (29)
  2. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

  • Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

 

 
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EU guidance documents

 

  • Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
  • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
    http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 
  • November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
  • Opinion 15/2011 on the definition of consent here 
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
 
 
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6. Own Websites & SNS

Sector

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 under the General tab below, or better yet Autocontrol will provide guidance

 

Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); channel rules extracted here (ES / EN). Article 23 specific to this channel set out below

 

CORE GAMBLING RULES 

 

  • Websites devoted to products or services that are subject to age restrictions such as Alcoholic Beverages, Gambling and Tobacco products should undertake measures to restrict access to such websites by minors (Art.  C7, ICC Code)
  • The General AV Law 13/2022 (EN key clauses inc. 2022 amends) applies to all sectors but also carries gambling-specific rules under article 123/7; recent amends extend scope into video-sharing services where there are new commercial communication identification requirements; see article 91, 2c for gambling marcoms rules in that context
  • The Content rules set out in Section B apply to marketing communications in this channel – both the Gambling-specific and the General rules, i.e. those that apply to all sectors. Principal sources of rules for Gambling marcoms are Royal Decree 958/2020 linked above and the Gambling Code of Conduct (EN unofficial), required to be brought in line with the Royal Decree by May 2021, and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN)
  • Principle 9 (Self-regulatory principles of commercial communications disseminated via electronic means in information society services) of the Gambling Code of Conduct linked above states: ‘Besides applying the principles established in Sections 1 to 7 of the Code herein and in Law 34/2002, of 11 July, on Information Society and Electronic Commerce Services, it is established as a specific principle within this area that pop-up advertisements may be easily closed and do not prevent browsing’.
  • The warning/ responsibility messages will apply to commercial communications; see Section B, point 2.6 and articles 10 and 11, Royal Decree 958/2020 (EN)

 

Royal Decree 958/2020
Article 23. Commercial communications in information society services

 

  1. The distribution of gambling operators’ commercial communications in information society services is prohibited, except in the following cases:

 

  1.  When they are located on the web pages or applications of the operators or the  communication media that support competitive games, in the latter case exclusively regarding this type of game
  2. When they are located on web pages or applications whose main activity is the offer of products or information on gambling activities defined by Law 13/2011, of May 27, as long as these web pages or applications have mechanisms to prevent access to minors and periodically disseminate messages about safe gambling. To that end, the video exchange services via  the platform and social networks are not considered web pages or applications as provided in this paragraph.

Those web pages or applications whose main activity is to offer information about sporting or equestrian events may create a specific and differentiated section devoted to offering information on betting, as long as that section:

 

 

  1. Is accessible from the home page through a single small informational link. In this context, the Gambling authority may establish by resolution the specifications regarding the shape, size or arrangement of the aforementioned connection
  2. Have mechanisms to prevent access by minors
  3. Periodically disseminate messages about safe gambling

 

  1. When they are the result offered by search engines. In those cases where the result offered is because of a commercial agreement between the advertiser and the search engine owner, only when that search uses words or phrases directly connected to the gambling activities defined by Law 13/2011, of May 27
  2. When sent via email or other equivalent means, in accordance with the provisions of article 24
  3. When they are distributed as commercial audiovisual communications in video sharing services through the platform according to the provisions of article 25
  4. When they are distributed on social networks, per article 26 provisions

 

 

  1. For the purpose of facilitating the functioning of parental control mechanisms, gambling operators’ commercial communications in information society services will incorporate an identifier that enables gambling-related recognition
  2. Gambling operators’ commercial communications in information society services will not overlap the main content of the page or application, blocking the major  part of said content, without there being a prior action of the user, with the exception of those that are developed exclusively in the operator's own portal. In any case, communications commercials will never block navigation and must be able to be closed or its execution stopped easily
  3. Commercial communications from gambling operators may not be located on web pages or applications that, in turn, promote gambling activities of entities without an enabling title in Spain, presenting them as aimed at residents in Spain, or on web pages or applications whose content violates the applicable intellectual property regulations.

 

Some other articles impact on marketers' own websites; see e.g. article 13 promotional activities from the link above 

 

 

CORE GENERAL RULES 

 

  • The general channel (i.e. placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in Spain reflects the applicable Directives 2002/58/EC in being opt-in / soft opt-in and E-Commerce rules from 2000/31/EC. Specifics under the General tab below
  • If a marketing communication constitutes an ‘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 Royal Decree 1/2007 ES / EN (2022); article 20 applies. More below under the General tab 
  • The most significant Self-Regulatory influence in channel rules in this context is Autocontrol’s Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version; translation of key provisions here. The code applies to ‘electronic distance media’ and covers data protection, e-commerce, protection of minors and digital advertising 
  • The General AV Law 13/2022 (EN key clauses) carries gambling-specific rules under article 123/7 and is referenced above accordingly. The law also includes the European rules in part from Directive 2010/13/EU on issues such as stereotyping, discrimination, gender identity, human dignity etc. Recent amends extend scope into video-sharing services where there are new commercial communication identification requirements

 

EU RECOMMENDATION

 

From Commission Recommendation 2014/478/EU (not binding, but significant)

 

  • 4. The following information should be displayed prominently on the landing page of the operator's gambling website and be accessible from all pages on the website:

 

  1. The company details, or other means that ensures the operator is identifiable and can be contacted, including: (i) company name; (ii) place of registration; (iii) e-mail address
  2. A ‘no underage gambling’ sign, which shows the minimum age below which gambling is not permissible
  3. A ‘responsible gambling’ message, which no more than one click away provides: (i) information that gambling can be harmful if not controlled; (ii) information about the player support measures on the website; (iii) self-assessment tests for the players to check their gambling behaviour
  4. A link to at least one organisation providing information and assistance in respect of gambling disorders

 

  • The terms and conditions of the contractual relationship between the operator and the consumer should be provided in a concise and legible manner. They should:

 

  1. Contain information at least about timeframes and limits regarding withdrawals from the player account, any charges concerning the player account transactions and a link to the applicable payout percentages for every game
  2. Be accepted and confirmed by the consumer during the registration process referred to in Section V
  3. Be made available by electronic means in a way that allows the consumer to store and retrieve them, and any changes communicated to the consumer

 

  • 6. Member States should ensure that information is available to the consumer about the rules concerning the games and bets available on the operator's gambling website
  • 7. Member States should ensure that the operator's gambling website displays the details of the gambling regulatory authority to show that the operator is authorised

 

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

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

 

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

 

STANDARD RULES 

 

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

 

APPLICABLE LEGISLATION AND SELF-REGULATION 

 

Legislation/ guidance 

 

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

 

 

Self-Regulation

 

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

 

Title III. e-Commerce/ DP

 

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

 

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 EASA Best Practice Recommendation Digital Marketing Communications

 

 

 

 

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International

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

 
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
  • 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

 

 
LEGISLATION
 

Directive 2002/58/EC on Privacy and Electronic communications; Article 13

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
 
Directive 2000/31/EC on E-commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 

 

Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

  1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, 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
  2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
  3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted
  4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 
 
Directive 2018/1808 amending the AVMS Directive 

 

  • Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

  • For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications  

 

 

GUIDANCE

 

EU Guidance/ opinion documents

 

 
 
 
2.2.5. Marketer-owned digital properties
 
As established in the previous sections, all marketing communications, as defined by the ICC Code, fall within the remit of SR systems. It is not, however, always immediately apparent to what extent content on marketer-owned digital properties may constitute marketing communications and thus fall within the remit of the SROs. It should never be automatically assumed that a marketer-owned digital property is a marketing communication in its entirety. The actual content of the marketer-owned digital property must be reviewed to determine that which is marketing communication content and that which is not. For this purpose the following criteria establish whether or not the content, or part of the content of a marketer-owned digital property constitutes a marketing communication:
 
  • Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
  • Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
  • Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
  • Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

SECTION C: NATIVE ADVERTISING

 

 

Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); channel rules extracted here (ES / EN). Article 7 specific to this form of advertising set out below

 

KEY RULES 

 

  • The ‘Native’ form of advertising is like any other advertising in the sense that it’s subject to the Content rules, in this contex Royal Decree 958/2020 linked above and the The Gambling Code of Conduct (EN unofficial), and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN)
  • Commercial communications addressed / directed to children under the age of 18 are prohibited (7.6. Gambling Code of Conduct)
  • Gambling warning/ responsibility messages must be included in marketing communications (6.2. Gambling Code of Conduct). See articles 10 and 11 of the Royal Decree 958/2020 linked above 
  • A reminder of the Identification rules from the Gambling Code of Conduct set out in Content Section B in 3. Principle of identification: ‘Marcoms must be easily identifiable and clearly recognisable as such’

 

Article 7 RD 958/2020. Principle of identification of commercial communications and the advertiser

 

  1. Commercial communications from gambling operators must be clearly identifiable and recognisable as such. Without prejudice to the fact that different formulations, terminology or presentation may be used for this purpose, the requirement set out in this section shall be understood to have been fulfilled when the commercial communication includes clearly and noticeably, in a manner appropriate to the medium through which it is disseminated, the word "publicidad" (advertising), the abbreviation "publi" (ad) or similar, or when it is inserted in advertising breaks or spaces clearly identifiable as such by the recipient
  2. In gambling operators’ commercial communications, the corporate name or the commercial name or image of the gambling operator whose activities are promoted. Commercial communications, whatever their format, will not mislead the identification of the operator that actually carries out the activity being promoted
  3. It is forbidden for an operator to use trademarks, trade names to identify itself and differentiate itself from other operators, without these being owned or owned by the business group to which said operator belongs. Commercial communications about specific games marketed by an operator are excluded from this prohibition
  4. Gambling operators’ commercial communications may not contain references to games or bets related to the results of the games or draws of another operator, nor to their intellectual or industrial property, without the prior authorisation of the latter. The acts of comparison provided for in article 10 of Law 3/1991, of January 10, on Unfair Competition, are excluded from this provision, which are allowed under the terms provided in said regulation

 

LEGISLATION

 

All sectors; see also General tab below

 

  • Law 3/1991 of 10th January on Unfair Competition (EN key clauses inc. 2022 amends) includes from the ‘blacklist’ of commercial practices originated in UCPD 2005/29/EC: Covert commercial practices. Payment by entrepreneurs or professionals 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 unfair (Art. 26)

 

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

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

 

LEGISLATION

 

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

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

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

 

GUIDANCE

 

 

SELF-REGULATION 

 

 

LEGISLATION KEY CLAUSES 

 

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

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

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

 

SELF-REGULATION KEY CLAUSES

 

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

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

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.' 

 

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; 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

 

Self-Regulation: key rules from the ICC Code

 

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”).

 

Legislation 

 

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

 

 

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8. Telemarketing

Sector

 

 

Following feedback, we no longer cover Telemarketing

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

 

Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); channel rules extracted here (ES / EN). 

 

Article 17.4 Commercial communications through face-to-face media states Commercial communications sent through postal mail are prohibited

 

 

  • The Content rules set out in our earlier Section B apply to marketing communications in this channel – both the Gambling-specific and the General rules, i.e. those that apply to all sectors. Principal source of rules for Gambling marcoms is The Gambling Code of Conduct (EN) and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN)
  • The warning/ responsibility messages set out in Section B apply to all media for signatories to the Gambling Code; see Point 1.6 in Content Section B
  • Commercial communications addressed / directed to children under the age of 18 are prohibited (7.6. Gambling Code of Conduct)
  • Direct 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; see General tab below as the rule applies to all sectors, Gambling included. Article 13(D) of Royal Decree 1829/1999 (ES) regulates DM and carries some rules unique to DM in Spain
  • Processing of personal data (broadly, that which identifies an individual) may be subject to lawful processing rules from the GDPR. Privacy issues should be reviewed with specialist advisors
  • If content constitutes an ‘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 Royal Decree 1/2007 ES / EN; article 20 applies. More below under the General tab

 

 
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General

SECTION C: DIRECT POSTAL MAIL

 

 

STANDARD RULES 

 

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

 

LEGISLATION 

 

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

 

………………………………………..

 

 

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

 

 

Key clauses from RD 1829/1999

 

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

 

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

 

 

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

 

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

 

 

Law 3/1991 on Unfair Competition; Article 29.2:

 

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

 

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

 

B2B

 

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

 

 

 

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International

 

Applicable Self-Regulation and legislation 

 

  • 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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Legislation

 

As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:

 

4.   In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

  • In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors

 

 

Guidance

 

Guidelines on consent under Regulation 2016/679 (May 2020)

 
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10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

 

Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); channel rules extracted here (ES / EN). Article 12, spelt out below, addresses sponsorship activities 

 

CORE RULES

 

  • Any associated promotional material will need to observe the Content rules set out in our earlier Section B, both the Gambling-specific and the General rules, i.e. those that apply to all sectors
  • Principal sources of rules for Gambling marcoms are the Royal Decree 958/2020 linked above and The Gambling Code of Conduct (EN unofficial), required to be in line with the Royal Decree by May 2021, and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN)
  • Warning/ responsibility messages should be included in sponsorship material; see point 6.2 of the Gambling Code and our Content Section B. See also articles 10 and 11 of Royal Decree 958/2020
  • General sponsorship rules, i.e. those that apply to all sectors Gambling included, can be found under the General tab below. A valuable source of rules, spelt out below, is Sponsorship Chapter B of the ICC Advertising and Marketing Communications Code (EN)

 

 

Article 12. Sponsorship activities

 

  1. The sponsor’s brand image, trade name, company name, material or promotional messages will not be used in promotional events, goods or services designed for minors or intended primarily for them
  2. The sponsorship of activities, sporting events, or broadcasts of the same, that are specifically directed at or whose participation is restricted exclusively to minors under age, is prohibited
  3. Sponsorship activities that consist of the use of the name, brand or commercial name of an operator to identify a sports facility or any entertainment centre are not permitted. Nor may there be sponsorship activities that involve replacing or adding to the name of a team or sports competition or any other entity outside the gambling and betting sector with the name or trade name of a gambling operator
  4. The sponsorship of shirts or sports kits will not be  permitted
  5. The issuance, placement or distribution of the sponsorship via  commercial communications via on-site presence in stadiums, facilities or sports venues of any kind must be adjusted to the time restrictions and the requirements established in this royal decree for audiovisual communication services. (Commercial communications of gambling operators in audiovisual communication services can only be issued between 01:00 and 5:00, without prejudice to the special rules established in articles 19 to 22)

 

FROM COMMISSION RECOMMENDATION 2014/478/EU

 

  • 46. Member States should ensure that sponsorship by operators is transparent and that the operator is clearly identifiable as the sponsoring party
  • 47. Sponsorship should not adversely affect or influence minors. Member States are encouraged to ensure that:

 

(a) No sponsorship is allowed of events designated for or mainly aimed at minors

(b) Promotional material of the sponsoring party is not used in merchandising designed for or mainly aimed at minors

 

  • 48. Member States should encourage sponsored parties to verify if the sponsorship is authorised, in accordance with national law, in the Member State where the sponsorship should take effect

 

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

 
Article B1 . Principles governing sponsorship

 

  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
 
Article B2 . Autonomy and self-determination
 
  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement
 
Article B3.  Imitation and confusion
 
  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
 
Article B4 . 'Ambushing' of sponsored properties
 
  • No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public
 
Article B5 . Respect for the sponsorship property and the sponsor
 
  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
  • The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them
 
Article B6 . The sponsorship audience
 
  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

 

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

 

Article B8 . Artistic and historical objects

 

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

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

 

Article B9 . Social and environmental sponsorship

 

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

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

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

 

Article B10 . Charities and humanitarian sponsorship

 

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

 

Article B11.  Multiple sponsorship

 

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

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

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

 

Article B12 . Media sponsorship

 

  • The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier

  • Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material

  • Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

 

Article B13 . Responsibility

 

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

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

 

 

 

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International

 

 

 

Self-Regulation

 

 

 

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

 

 

 B4: 'Ambushing' of sponsored properties

 

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

 

 

B5: Respect for the sponsorship property and the sponsor

 

  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position that 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 trade- marks of the sponsor, or jeopardise the goodwill or public esteem associated with them

 

 

B6: The sponsorship audience

 

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

 

 

B7: Data capture/ data sharing

 

  • If an individual’s data are used in connection with sponsorship, the provisions of article 19  are applicable

 

 

B8: Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them

 

 

B9: Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship.
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications

 

 

B10: Charities and humanitarian sponsorship

 

 

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

 

 

B11: Multiple sponsorship

 

  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity
  • In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship. The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors

 

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11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to set out the rules for international marketing communications and as such does not claim authority on the presentation of Sales Promotion (SP) rules. When we find relevant provisions in the course of what is extensive research, we will include them in this section

 

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Royal Decree 958/2020 (ES), which came into force November 2020, severely restricts Gambling advertising. The key clauses have been unofficially translated by GRS here; scope and definitions here (ES / EN); channel rules extracted here (ES / EN). Article 13, spelt out below, addresses promotional activities

 

STANDARD RULES 

 

  • SP marketing communication is subject to the Content rules set out in our earlier Content Section B; principal source of rules for Gambling marcoms are the Royal Decree 958/2020 linked above and The Gambling Code of Conduct (EN unofficial), required to be in line with the Royal Decree by May 2021, and for General rules in Spain Autocontrol’s Code of Advertising Practice (EN)
  • The general channel rules also apply. These are shown below under the General tab and include e.g. some statutory requirements when communicating promotional marcoms (key articles referenced under the Gambling section immediately below)
  • Commercial communications addressed / directed to children under the age of 18 are prohibited (7.6. Gambling Code of Conduct)

 

SPECIFIC PROMOTIONAL GAMBLING RULES 

 

Article 13 of Royal Decree 958/2020 linked above. Promotional activities

 

  1. Promotions to attract new customers are prohibited whatever the conditions of the promotion. To that end, it is only permitted to offer promotions to those clients who, cumulatively:

 

  1. Have a gaming account open for at least thirty days
  2. Have verified documentation

 

  1. Any type of specifically directed promotional activity from an operator is prohibited, in addition to banned or self-excluded persons in accordance with the provisions of article 10.2.g), to those of its clients who have been classified as players with risky gambling behavior under the provisions of article 34
  2. Commercial communications of promotional activities may only:

 

  1. target existing customers
  2. or appear, in a separate section, on the website or application from which the operator offers gaming activities
  3. or be disseminated in the establishments accessible to the public of the operators designated for the marketing of lottery games

 

 

Rules for commercial communications of promotions 

 

  1. Commercial communications of promotional activities:

 

  1. May not convey a false or confusing impression of benefits or lack of complexity of the promotion or create confusion as to the nature of the game
  2. Will not include testimonials from previous beneficiaries, real or fictitious, of the promotion
  3. May not be based on the player's skills
  4. They must include clear and transparent information, if applicable, on:

 

1)     The minimum amount of the deposit required to access the promotion

2)     The amount to be played and, if applicable, the number of times it is necessary to bet a certain amount so that the player can freely access, through the gaming account, the amount of the promotion and possible winnings derived from its use

3)     The maximum term to access the monetary benefit of the promotion

4)     The nature of the promotion, identifying whether it is money that can be withdrawn  or money in bets

 

It will not be necessary to include the information provided for in paragraph d) when commercial communications for promotional activities are disseminated through advertising spaces where, due to their size or capacity, it is not possible to include the aforementioned information, although in such circumstances, it must be indicated, clearly and appropriately to the means of distribution, that the promotion is subject to conditions available on the operator's website. In these cases, the information provided in paragraph d)  will be displayed clearly in a direct and immediately accessible link or connection, distinct from the rest of the information related to the promotion

 

 

Information requirements

 

  1. The information on the rest of the conditions to which promotional activities are subject must be available, together with the elements detailed in paragraph d) of section 4, on the website or on the operator’ application, in a clear, accessible and distinct way, prior to contracting the promotion and throughout the running of it. In particular, the following should be brought together, in the event of applicability:

 

a)     The maximum amounts of bets permitted

b)     The order of previous, concurrent  or sequential use of the promotion, in relation to deposits or participations from the gaming account linked to it

c)     The process for the early cancellation of the promotion and its corresponding impact on the gambling account

d)     The moment in which the profits derived from using the promotion can be freely deployed

e)     The control of said gains to a limited amount

f)      Minimum quota, if any, of bets which must be made

g)     Any other rules to which the use or accounting of the bonus is subject

h)     Accepted means of payment to subscribe to the promotion

 

Promotion operation

 

  1. The operation of loyalty promotions:

 

  1. The return on premiums of the games to which it applies cannot be altered
  2. The impossibility of withdrawing the balance of the gambling account whose origin comes from deposits made with real money cannot be assumed. In the event that it is decided to withdraw this balance, the operator may consider both the promotion and the positive balance resulting from the operations derived from it as lost
  3.  In the presentation of the gambling account the amounts, balances and premiums should be clearly separated from real money operations
  4. It is required that the conditions to be able to enjoy the premiums granted by a promotion may not affect the economic amounts associated with deposits or participations with the real money of the user
  5. In the case of promotions consisting of free games, the conditions established in the paragraphs c) and d) above will not be mandatory provided that the possible earnings derived from the same are not subject to restriction in light of their full disposal by the user

 

  1. People who have been granted an increase in the deposit amounts to their gambling account in accordance with the provisions of article 36 of Royal Decree 1614/2011, of November 14, which develops Law 13/2011 of May 27 regulating gambling, in relation to licenses, authorisations and registrations of the game, will not be able to receive any type of promotion in the 30 days following the one in which these new financial restrictions have entered into force. During this period, players can continue to use those bonuses or promotions that would have been granted prior to the entry into force of these new restrictions
  2. People who have requested to withdraw from their gambling account may not receive any type of personalised promotion while they can cancel said withdrawal
  3. Compliance with the requirements set out in this article will not affect the possible consideration of the specific contractual conditions established by the operator in connection with the promotion as wrongful or unfair
  4. The authority in charge of regulating gambling may develop the conditions and restrictions to which, where appropriate, the promotional activity aimed at the customers of the operators may be subject, beyond that which is provided in this Royal Decree


Welcome bonuses no longer permitted under the terms of the Royal Decree 958/2020, article 13 (set out above)

 

Art. 9(2b) (EN) Ministerial Orders for regulated gambling activities Scope Applicable to Poker, Bingo, Roulette, Black Jack, Baccarat, Complementary Games, Slot Games, Fixed Odds Betting on Sports, Fixed Odds betting on horse racing, Other fixed odds betting, Pool betting on sports, pool betting on horse racing, exchange betting (on sports, horse racing, and other events), and Contests. Carried out by electronic, computerised, telematic and interactive means (i.e. online, mobile, TV) 

 

  • The gambling operator can carry out promotional activities for offering games/ gambling activities that it markets and can offer bonuses / discounts for player registration or participation provided that such practices: b) do not contravene the provisions of Law 34/2002, of the 11th of July, regarding information society services and electronic commerce (English translation of relevant provisions here (EN); see key provisions of Art. 20 below)

 

  • Art. 20 (1): The communication must be clearly identifiable as such and the natural or legal person (entity) on behalf of whom they are made must also be clearly identifiable
  • Art. 20 (2): For promotional offers (such as discounts, premiums and gifts) and promotional competitions or games, the necessary prior consent must be obtained (i.e. opt-in consent, see Art. 21.1 LSSI), and the requirements in Art. 20.1 must be complied with along with applicable commercial laws and regulations
  • Promotional offers (discounts, premiums and gifts), in addition to promotional competitions or games must be clearly identifiable as such, and the conditions which are to be met to qualify for them (in the case of offers) or participate in them (competitions/ games) must be easily accessible and must be presented clearly and unambiguously
  • Art. 20 (4): It is prohibited to send commercial communications which disguise or conceal the identity of the sender; as well as encourage recipients to visit websites which contravene the provisions of Art 20 LSSI

 

 

WELCOME BONUSES AND PROMOTIONS 

 

Welcome bonuses no longer permitted under the terms of the Royal Decree 958/2020, article 13 (set out above)

 

  • DGOJ proposed criteria, approved by the Joint Committee for the Monitoring of the Code, which should be followed in commercial communications for welcome bonuses and promotions in order to ensure compliance with the principle of truthfulness. English translation of proposal here
  • When advertising a welcome bonus the following information relating to the bonus offered must be included – applicable to all advertising channels (excluding online banner ads and short radio commercials):

 

  1. The amount of the bonus
  2. The minimum deposit required from the user to access the bonus
  3. The amount to be gambled or the number of times one needs to bet a certain amount so as to free up / unlock the bonus
  4. Time limit / term to free up / unlock the bonus

 

See also Principle 4.3 of the Gambling Code of Conduct (EN)

 

Welcome bonuses no longer permitted under the terms of the Royal Decree 958/2020, article 13 (set out above)

 

  • For welcome bonuses advertised on Internet banners/ micro-banners and radio commercials lasting less than 6 seconds, the information set out above should be implemented as follows:

 

  1. Reference should be made in the communication that the bonuses are subject to conditions (‘bono sujeto a condiciones') available on the gambling operator’s website
  2. Conditions of the promotional bonus should be shown separately from the other terms and conditions displayed on the website. In the case of banners and micro-banners, the marketing communication must include a link to the website, such as a ‘landing page’ which becomes a mandatory step for a user prior to registration or gambling
  3. In all cases, the content of the initial marketing communication must not be likely/ liable to mislead.
  4. In the case of bonuses/ vouchers advertised via micro-banners, if the inclusion of the caption “bono sujeto a condiciones” (bonus subject to conditions) cannot be inserted due to limited space and the static nature of the medium, the hyperlink must lead in every case to the landing page mentioned in para. 2

 

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

 

 

1. APPLICABLE RULES 

 

1.1. Legislation

1.2. Self-Regulation in Promotions

1.3. Guidance

 

2. PROMOTIONAL FORMS 

 

2.1. Promotion of sales with free gifts

2.2. Information Requirements

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

2.4. Online advertising of promotional offers and games/ competitions

2.5. Skill-based and Prize Draws

2.6. Free-prize draws/ sweepstakes

2.7.  Paid-entry sweepstakes, games and raffles

2.8. Competitions and contests

2.9. Other requirements

 

3. HORIZONTAL LEGISLATION 

 

3.1. Misleading Advertising by omission of material information

3.2.  ‘Bait’ advertising and misleading promotional practices

 

4. LEGAL BASES (rules of the promotion)

 

5. SOCIAL NETWORKS 

 

6. SELF-REGULATION IN PROMOTIONS 

 

6.1. Autocontrol Code of Advertising Practice

6.2. ICC Advertising and Marketing Communications Code 

 

 

 

 

1. APPLICABLE RULES  

 

1.1. Legislation

 

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

 

 

1.2. Self-Regulation in promotions

 

 
 

1.3. Guidance

 

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

 

 
2. PROMOTIONAL FORMS 

 

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

 

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

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

 

2.2. Information Requirements

 

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

 

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

 

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

                                                                      

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

 

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

 

Article 20 LSSICE: Information Requirements:

 

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

 

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

 

2.5. Skill-based and prize draws

 

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

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

 

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

 

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

 

2.7.  Paid-entry sweepstakes, games and raffles

 

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

 

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

 

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

 

Further information 

 

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

 

 

2.8. Competitions and contests

 

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

 

 

2.9. Other requirements

 

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

 

3. HORIZONTAL LEGISLATION 

 

3.1. Misleading advertising by omission of material information

 

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

 

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

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

 

The following shall be considered misleading and hence unfair:

 

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

 

 
4. LEGAL BASES 

 

 

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

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

 

 

 

5. SOCIAL NETWORKS 

 

 

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

  • Facebook promotion rules here
  • Twitter promotion rules here

 

 

 

6. SELF-REGULATION IN PROMOTIONS 

 

6.1. Autocontrol Code of Advertising Practice

 

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

 

 

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

 

 

 

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International

 

 

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, 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.

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

 

 

SELF-REGULATORY CLAUSES 

 

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

 

 

A2: Terms of the offer

 

Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price 
of the main product

 

 

A3: Presentation

 

A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)

 

 

A4: Administration of promotions

 

Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations

 

In particular:

 

  • the availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. if delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made;
  • defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request;
  • complaints should be efficiently and properly handled

 

 

A5: Safety and suitability

 

  • Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
  • Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

 

 

A6: Presentation to consumers

 

  • Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated

 

 

Information requirements

 

Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:

 

  • Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
  • Main characteristics of the promotional items offered
  • Any time limit on taking advantage of the promotional offer
  • Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. in the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
  • The value of any voucher or stamp offered where a monetary alternative is available
  • Any expenditure involved, including costs of shipping and handling and terms of payment
  • The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)

 

Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.

 

 

Information in prize promotions

 

Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:

 

  • Any rules governing eligibility to participate in the prize promotion
  • Any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
  • Any restriction on the number of entries
  • The number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
  • In the case of a skill contest, the nature of the contest and the criteria for judging the entries
  • The selection procedure for the award of prizes
  • The closing date of the competition
  • When and how the results will be made available;
  • Whether the consumer may be liable to pay tax as a result of winning a prize
  • The time period during which prizes may be collected
  • Where a jury is involved, the composition of the jury
  • Any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

 

The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

  • The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion

 

 

C4 : Presentation

 

  • Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
  • Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
  • Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase

 

 

C17:  Substitution of products

 

  • If a product becomes unavailable for reasons beyond the control of the marketer or operator, another product may not be supplied in its place unless the consumer is informed that it is a substitute and unless such replacement product has materially the same, or better, characteristics and qualities, and is supplied at the same or a lower price. In such a case, the substitution and the consumer’s right to return the substitute product at the marketer’s expense should be explained to the consumer

 

 

LEGISLATIVE CLAUSES

 

As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:
 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time or

(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

15. Claiming that the trader is about to cease trading or move premises when he is not

16. Claiming that products are able to facilitate winning in games of chance

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

there is no prize or other equivalent benefit, or

taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

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

 

Article 1

 

The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

 

Article 3

 

  1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price
  2. Member States may decide not to apply paragraph 1 to:

 

— products supplied in the course of the provision of a service

— sales by auction and sales of works of art and antiques

 

  1. For products sold in bulk, only the unit price must be indicated
  2. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

  1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited
  2. The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

  1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion
  2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

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Read more

D. Advice & Clearance

General

SECTION D

 

JANUARY 2021

 

 

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

 

la Consultoría orientativa de protección de datos,

Data protection consultancy and

la Consultoría sobre campañas de publicidad o web

Consultancy on ad campaigns or the web

 

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

 

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

 

 

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

 

 

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

 

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

 

 

MANDATORY COPY ADVICE 

 

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

 

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

 

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

AUTOCONTROL AND CONFIANZA 

 

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

 

 

ADVICE SERVICES 

 

(also see above under january 2021)

 

Autocontrol provides four types of advice service: 

 

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

 

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

 

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

 

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

 

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

 

The Cookie Advice Service is in 3 stages:

 

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

 

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

 

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

 

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

 

 

Autocontrol services:

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

 

 

CLEARANCE

 

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

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

 

 

Read more

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

http://www.easa-alliance.org/products-services/publications/best-practice-guidance

 

Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)

http://www.easa-alliance.org/sites/default/files/EASA%20Common%20Principles%20and%20Operating%20Standards%20of%20Best%20Practice.pdf

 

Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Online%20Behavioural%20Advertising_0.pdf

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E SOURCES/ LINKS

 

 

LEGISLATION

 

European legislation

 

GDPR

 

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

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en

The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:

https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)

 

 

European Data Protection Authority

Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

 

Three more recent and significant documents:

 

 

UCPD

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (the ‘Unfair Commercial Practices Directive’ – UCPD):

 

https://eur-lex.europa.eu/eli/dir/2005/29/oj

Guidance (2021):

https://ec.europa.eu/info/sites/default/files/c_2021_9320_1_ucpd-guidance_en.pdf

 

 

European Communication and Recommendation: Gambling

 

In March 2011 the European Commission launched a consultation on online gambling services. In particular, the Commission asked for views on online commercial communication, sales promotions, direct marketing and sponsorship. Following its consultation, the Commission adopted the Communication Towards a comprehensive European framework on online gambling in October 2012, which set out the commission’s action plan for the next two years. Key objectives of the action plan included ensuring protection of minors and enhancing responsible advertising.

EU Commission Recommendation (2014/478/EU) on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online was published in July 2014. This is a Recommendation (not legally binding) on responsible gambling advertising, which aims to ensure that operators advertise in a socially responsible manner and provide key information to consumers. It also requires close protection of minors:

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014H0478

On 27 November 2015, gambling regulatory authorities of EEA Member States signed a cooperation arrangement to enhance administrative cooperation. The cooperation arrangement follows other initiatives announced in the Communication, 'Towards a comprehensive European framework for online gambling'.

 

 

More EU legislation is shown under the General tab below

 

National gambling-specific

 

Law 13/2011, of 27 May, on the regulation of gambling, known as the Spanish Gambling Act. Entry into force 29/05/2011. ES:

http://www.boe.es/buscar/act.php?id=BOE-A-2011-9280&b=11&tn=1&p=20140510#a7

English translation from DGOJ:

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

(Does not include up to date version of Art. 7)

GRS translation of key articles (including amendments to Art. 7):

http://www.g-regs.com/downloads/SPGamblingRegLaw13_2011b.pdf

 

 

The law establishes the regulatory framework for online gambling Definition meaning gambling activities which are carried out via electronic, computerised, telematic and interactive means, in which ‘in-person’ elements play an ancillary role – so TV, internet, telephone, text message (Art. 1 (para 2) and Art. 3(h) Law 13/2011) at state level as well as that of related advertising and promotional activities. The main aim is to harmonise the regulation of online gambling in Spain. Scope: ‘Gambling’ comprises: lotteries, betting, raffles, contests, occasional games and transnational/ cross-border games (including those organised by companies outside Spain but targeted at Spanish residents), as well as any other activity in which sums of money or economically assessable items in any form are bet / risked on future and random results, which depend to some degree on chance, and which allow these sums to be transferred between the participants, regardless of whether skill or chance and luck is the predominant feature (see Art. 2 (1) Law 13/2011). Excluded are traditional on-site/ offline gambling (bingo, betting shops, casinos) activities; each of 17 autonomous communities regulates them. Also excluded: random combinations with advertising or promotional aims (Art. 2 (2c) definition in Article 3 (i) raffles/ sweepstakes aimed exclusively at advertising or promoting a product or service). Article 7 regulates in broad terms the advertising, promotion, and sponsorship of gambling activities, establishing that any form of advertising of gambling activities can only be offered by licensed gambling operators.In practice, the advertising authorisation is included in the resolution that grants the gambling licence (Art. 22 (h) RD 1614/2011). The law also helps foster the Self-Regulatory system by empowering the DGOJ (the Gambling Authority) to sign co-regulatory agreements to encourage compliance with the obligations established in the Law, particularly regarding advertising. From these co-regulatory agreements the Self-Regulatory code of conduct for gambling advertising was drawn up (see additional provision 7: RD 1614/2011). The Act empowers the autonomous communities to continue determining the majority of gambling regulations and policies within their respective regions. 

 

Commercial communications

 

Royal Decree 958/2020, of 3rd November, on commercial communications of gambling activities (Real Decreto 958/2020, de 3 de noviembre, de comunicaciones comerciales de las actividades de juego.) Entered into force 5/11/2020. This Royal Decree introduces severe new restrictions on gambling commercial communications. All forms of communication are affected and all channels. Inter alia, television advertising is confined to 0100-0500 hrs, promotions to attract new customers are prohibited whatever the conditions of the promotion (art.13), the sponsorship of shirts or sports kits will not be permitted (art.12) and there are extensive content rules on social responsibility safe play etc. (articles 7-11 Inc.). The appearance in commercial communications of people or characters of relevance or public profile is prohibited (art. 15). Any provisions of the same or lower rank that contradict the provisions of this Royal Decree are repealed. The Gambling Code of Conduct administered by Autocontrol is required to come into line with the Royal Decree within a period of six months from the Decree’s entry into force.

https://www.boe.es/diario_boe/txt.php?id=BOE-A-2020-13495 (ES)

ES/EN key clauses:

http://www.g-regs.com/downloads/SPGamDecree9582020ENcGRStrans.pdf

ES/EN Scope and Definitions:

http://www.g-regs.com/downloads/SPGamDecree9582020ScopeandDefsESENR.pdf

ES/EN Channel rules:

http://www.g-regs.com/downloads/SPGamDecree9582020ChannelRulesESEN.pdf

 

Authority

 

Regulatory Authority: Directorate General for Gambling Regulation (DGOJ); see Association section for detail.  English version of website:

http://www.ordenacionjuego.es/en

 

Ministerial orders

 

Individual general gambling regulations for specific gambling activities. (This makes up the list of regulated gambling activities)

 

Article 9 of each Ministerial Order relates to the promotion of the respective gambling activity, with the exception of Exchange Betting and Fixed Odds Sports Betting (where there is an extra provision relating to in-play betting) the provisions are the same in each Order; see translation here: 

http://www.g-regs.com/downloads/SPGamblingMinsterialOrdersArt.9.pdf

 

  • Ministerial Order HAP/1370/2014 Slot machines ES
  • Ministerial Order EHA 3090/2011 Complementary games  (ES / EN)
  • Ministerial Order EHA 3089/2011 Poker (ES / EN)
  • Ministerial Order EHA 3087/2011 Bingo (ES / EN) (amended by MO HAP 1998/2013 EN)
  • Ministerial Order EHA 3088/2011 Blackjack (ES / EN)
  • Ministerial Order EHA 3085/2011 Roulette (ES / EN)
  • Ministerial Order EHA 3086/2011 Baccarat (ES / EN)

 

 

Specific / singular licences permitted under general licence heading: ‘Betting’

All promotion rules under article 9 in each case

 

  • Ministerial Order HAP/1369/2014 approving betting exchanges Art. 2.9: Other exchange betting: A type of bet in which the event for which it was drawn up/ offered, is the outcome of one or more bettable events, which do not have a sporting or horse-racing character, and are found in the schedules previously set by the operator; basic regulation and amending several orders (Art. 2.9 and 2.15 meaning of other exchange betting events; bet-in play permitted) (ES)

 

  • Singular licences are available for each of the following types: exchange sports betting, exchange horse race betting, and other forms of exchange betting (Art. 3)
  • Promotion of Exchange Betting: Article 9 (5) reads: operators of in-play / live exchange betting, can carry out advertising in relation to bets that they market in the medium broadcasting the event upon which the bets are based, done simultaneously and without the need for a break)

 

  • Ministerial Order EHA 3079/2011 Other forms of fixed odds betting (live/ in-play – other fixed odds betting permitted – specific licence under Art. 3) (ES / EN). See Art. 2.1/ 2.3 – definition of other fixed bet/ event has been broadened to include betting on other animal racing following amendment by Article 6 of Ministerial Order HAP/1998/2013, of 22 October EN
  • Ministerial Order EHA 3080/2011 fixed odds sports betting (ES / EN)

 

  • Promotion of fixed-odds sports betting:  Article 9 (5) Operators of live fixed odds sports betting may advertise bets in the medium which is broadcasting the sporting event upon which the bets are based, done simultaneously and without the need for a break

 

  • Ministerial Order EHA 3081/2011 Pool (pari-mutuel) sports betting (ES  / EN)
  • Ministerial Order EHA 3082/2011 Fixed odds horse race betting (ES / EN)
  • Ministerial Order EHA 3083/2011 Pool (pari-mutuel) (ES / EN)

 

Singular licences permitted under general licence: ‘Contests’

 

  • Ministerial Order EHA 3084/2011 Contests (ES / EN)

 

  • Definition of Contest under Article 2.1, which mirrors definition in Article 3 (e) 13/2011) 
  • Single licence required for the type of contest to be carried out. See Article 9 Promotion.

 

GRS note: So although raffles and other forms of pool/ pari-mutuel betting are regulated/ permitted under Art. 3 Law 13/2011, there is no specific Ministerial Order that develops the law´s regulation about raffles or other pool betting. So, in Spain, a game operator can only manage sports and horse pool betting but no other pool betting. As there is no Order regulating other categories of pool betting nor raffles, it is illegal to carry out these games according to article 5.3 of Law 13/2011, therefore they can't be advertised. Occasional or sporadic raffles may be held under authorisation (as per Art. 12 Law 3/2011)

 

 

Other royal decrees

 

Royal Decree 1614/2011 of 14 November implementing Law 13/2011 of 27 May on the regulation of gaming, in regard to gaming licences, permits, and registers. Contains information on online gambling licences. Confirms that application for a general licence must include, where applicable, application for authorisation to carry out advertising, sponsorship, or promotions. For these purposes, the communication of the intention to carry out the advertising activity will be sufficient when applying for the licence or during its period of validity… (Art. 4(2g); Art. 16 (3h) &( 6e); Art. 22(h)). Temporary Provision One states: “Until the publication of the Royal Decree developing/ implementing Article 7 of Law 13/2011, of 27 May, on the regulation of gambling, the advertising, sponsorship and promotion of gambling activities will be carried out in accordance with the provisions in Article 7, The General Advertising Law 34/1988 (EN), and the regulations developing it: Act 3/1991 on Unfair Competition (EN) and Law No. 29/2009 modifying the Legal Regime Governing Unfair Competition and Advertising to Improve Consumer and User Protection.” In Spanish:

http://www.boe.es/buscar/act.php?id=BOE-A-2011-17836

English translation:

http://www.g-regs.com/downloads/SPGamblingRD1614_2011.pdf

 

Royal Decree 1613/2011 of 14 November, which implements Law 13/2011 of 27 May on the regulation of gambling with regard to the technical requirements of gaming activities. English translation:

http://www.g-regs.com/downloads/SPGamblingRD1613_2011.pdf

 

 

 

General national legislation

 

Applicable to all sectors, Gambling included. The below are included here because they have been referenced in the preceding text.

Further information and statutes under the General tab below

 

Channel legislation

 

General Law on Audiovisual Communication 7/2010 of 31st March. Entry into force 01/05/2010. This law implements the AVMS (Audiovisual Media Services) Directive 2010/13/EU). This law regulates audiovisual media services (TV/Radio, linear and non-linear/ on-demand – Art.2.2) and establishes rules for audiovisual commercial communications in the form of television or radio advertising spots, sponsorship, tele-shopping and product placement. This applies only to private broadcasting channels; advertising in national public channels is prohibited. The CNMC (Comisión Nacional de los Mercados y la Competencia - National Markets and Competition Commission), is the audiovisual authority in Spain). An agreement was also signed with Autocontrol to foster co-regulation on TV commercial communications (June 2015 with CNMC). Consolidated text:

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

English translation of key clauses:

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

 

General Law on Audiovisual Communication 13/2022 of 7 July. Repeals the former General AV law above and transposes the amends to the AVMS Directive 2010/13/EU brought about by Directive 2018/1808 which, for the purposes of this database, largely concern the extension of scope into video-sharing platforms. The law includes gambling-specific scheduling regulations under article 123/7 and rules for gambling marcoms under article 91, 2c.  Consolidated text:

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

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

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

 

This Decree still in force (Oct 2022) but in development following consultation in the context of amends to the General AV law above. Royal Decree 1624/2011 of 14th November approving the Regulation developing the Spanish General Law 7/2010 of 31 March on Audiovisual Communications regarding television advertising. The regulation supplements the General Law 7/2010 and develops some elements of the Spanish Law on TV advertising that were not sufficiently clear in the General Law, such as the calculation of the twelve minutes of advertising per hour or the maximum number of advertising breaks per programme. The law more clearly defines concepts such as tele-promotion, self-promotion and sponsorship, product placement, marcoms during broadcasting of sports events.  Commercial messages broadcast during the retransmission of sport events are permitted by the Spanish General Law on Audiovisual Communications (Art. 14.4) only when the game is paused or when the advertisements allow the event to still be followed. In this case, advertising is allowed by overprints not occupying more than one fifth of the screen (Art. 15/16 RD 1624/2011). Consolidated text:

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

English translation of key clauses:

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

 

E-commerce

 

Law 34/2002 of 11 July, on information society services and electronic commerce; entry into force 12/10/2002. This law implemented the E-Commerce Directive 2000/31/EC and also incorporated some of the provisions of the E-Privacy Directive 2002/58/EC (Article 13) via amendment 32/2003.  Law 34/2002 establishes a number of information requirements (Art. 10) for any company providing ‘information society services’, defined as those provided for remuneration (even if they are free for the recipient), at a distance, electronically and at the individual request of the user. It also regulates companies sending of electronic commercial communications (Title III Art. 20 and 21). Consolidated text:

http://www.boe.es/buscar/act.php?id=BOE-A-2002-13758&tn=1&vd=&p=20140510  

English translation of key clauses: 

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

 

Consumer protection/ distance selling

 

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

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

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

Other relevant articles in English here:

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

2014 Ministry translation of full law EN

 

Unfair competition

 

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

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

Unofficial, non-binding English translation:

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

 

General advertising

 

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

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

English translation of key clauses inc. 2022 amends:

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

 

 

SELF-REGULATION

 

Code of Conduct for Commercial Communications of Gambling Activities (Código de conducta sobre comunicaciones comerciales de las actividades de juego) 2012, amended 2013 and 2019. This code resulted from a co-regulation agreement signed between Autocontrol (SRO), the Directorate-General of Gambling Regulation (DGOJ), the National Commission of Markets and Competition (CNMC) and the Gambling Operators. The legal basis for establishing a Self-Regulatory code from such a co-regulation agreement is found in Articles 24.5 and 7.4 of Law 13/2011 and further developed in the seventh additional provision of Royal Decree 1614/2011 of 14 November, implementing Law 13/2011 of 27 May. The Code applies to all advertisements, promotion, sponsorship and any other form of commercial communication disseminated in Spain, of any type of gambling activity regulated in Law 13/2011 on the regulation of gambling, including the promotion of companies, brands and events carried out by companies or bodies bound to the Code. List of companies bound to the Code here includes gambling operators, ad agencies, media providers, ISPs. Autocontrol enforces the Code. Under the first transitory provision of Royal Decree 958/2020 set out above, 'the content of the Code of Conduct on Commercial Communications of Gaming Activities of June 7, 2012 will be adapted to the content of this Royal Decree within a period of six months from its entry into force.'

https://www.autocontrol.es/wp-content/uploads/2020/01/anexo-i-nueva-version-codigo-de-juego.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2021/06/codigo_conducta_comunicaciones_comerciales_actividades_juego_en.pdf (EN)

 

Autocontrol general codes

 

Autocontrol has two main Codes of Conduct, which cover commercial communications of all products/ services in all media (Confianza Online Code is restricted to online advertising/ electronic distance communications media), applicable to all members of Autocontrol

 

General Code of Advertising Practice (May 2021)

 

Ethical rules applicable to all advertising communications activities whose aim is to promote, directly or indirectly, whatever the means employed, the procurement of goods or services, or the strengthening of brands or trademarks, as well as to any private advertisement issued on behalf of an individual or legal entity aimed at promoting certain attitudes or behaviours. Not applicable to political advertising.

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

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

 

 

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

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

GRS non-binding unofficial translation of the key articles:

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

 

Influencers

 

The Code of Conduct on the Use of Influencers in Advertising was published October 2020 by the Association of Spanish Advertisers and Autocontrol, entering into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. The code defines when Influencer advertising qualifies as such and sets out identification requirements. The use of Influencers may not be allowed for Gambling commercial communications under the terms of article 15 of Royal Decree 958/2020, which prohibits the use of ‘people or characters of relevance or public profile’.

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

http://www.g-regs.com/downloads/SPGenInfluencerCode2020ENonly.pdf (EN)

 

Cinema

 

 Code of Ethics on Advertising in Cinema Entry into force 30 June 2016. An agreement establishing this new Code of Ethics on Cinema Advertising was signed between Autocontrol and the main agencies responsible for cinema advertising – namely Movierecord, Discine and 014 - on May 30th 2016 in Madrid. According to the agreement, Autocontrol has been entrusted with the control and application of the Code via its Advertising Jury; non-binding copy advice can be sought from Autocontrol’s technical team. General rules – principle of legality, conformity with General Code of Practice etc. - are under Chapter 2. There are also some specific rules (Chapter 3) relating to cinema advertising and the protection of children (Art. 6), the advertising of alcoholic beverages (Art. 7), and to movie promotions in the form of trailers (Art. 8). Signatories to the Code should ensure that movie promotions or trailers reflect the age rating of the main film. In Spanish:

http://www.autocontrol.es/pdfs/pdfs_codigos/COD_PUBLICIDAD_CINE_30.06.2016.pdf

 

 

Gambling authority/ associations

 

The Directorate General for the Regulation of Gambling (Direccion General de Ordenacion del Juego, or DGOJ) is the gambling industry regulatory body which regulates, authorises, supervises, controls and, if necessary, penalises gambling activities at state level. This includes the granting of licences to operators. It essentially ensures the proper functioning of the Spanish gambling industry, particularly gambling activities carried out online, as well as those developed by monopoly lottery operators at state level (SELAE and ONCE). The main task of the DGOJ and its true mission is to protect those who participate in gambling activities, particularly minors, and dependent and vulnerable groups, which it achieves via: its Responsible gambling strategy (launched in Nov 2012, aimed at establishing a common responsible gambling strategy, with the participation of the gambling industry) and Responsible Gambling Advisory Board (set up 2013) – which proposed the creation of the responsible gambling website (www.jugarBIEN.es); the identity verification system and general register of gambling access bans - RGIA);  the advertising code (which includes, among other principles, responsible gambling and social responsibility principles); and the Responsible Gambling Forum. http://www.ordenacionjuego.es/en/juego-responsable-dgoj

http://www.ordenacionjuego.es/en

 

Joint Committee for the Monitoring of the Code of Conduct for Commercial Communications in relation to Gambling Activities  (Comisión Mixta de Seguimiento del Código de Conducta sobre Comunicaciones Comerciales de las Actividades de Juego). Created on 18 December 2012, composed of representatives of the Government, gambling operators, audiovisual media service providers (television and radio), information society service providers and newspaper publishers, as well as an Autocontrol representative, with voice but without vote. Functions include, among others, periodic assessment of the application of the Code of Conduct and making such proposals as it deems appropriate to improve and review the Code. Agreed in 2013 on the responsible gambling message to be included in all gambling marcoms as ‘Juega con responsabilidad’.

 

 

Gambling Policy Council (Consejo de Políticas del Juego)

 

Responsible for acting as a liaison between the federal government and the appropriate authorities in each of the 17 designated regions. Articles 34 and 35 of the Gambling Act, Law 13/2011 determine that the Gambling Policy Council (CPJ) is the state and regional body for participation and coordination on gambling matters. The Council is composed of members of Regional Councils in charge of gambling matters in every Autonomous Region and City, as well as by an equal number of representatives of the General State Administration.

 

EGBA

https://www.egba.eu/about-us/

 

BRUSSELS, 28 April 2020 – The European Gaming and Betting Association (EGBA) has today published the first pan-European Code of Conduct on responsible advertising for online gambling. The Code is broad in scope and introduces essential standards for advertising content, across all media platforms, and dedicated measures for social media. The Code has a particular focus on minor protection. The “Code of Conduct on Responsible Advertising for Online Gambling” intends to complement and strengthen existing legal and self-regulatory frameworks for online gambling advertising in Europe. The initiative has been developed in the context of the EU Audio Visual Media Services Directive, which emphasises the important role of self and co-regulation in protecting minors from exposure to gambling advertising. More here.

https://www.egba.eu/uploads/2020/04/200625-EGBA-Code-of-Conduct-on-Responsible-Advertising-for-Online-Gambling.pdf

 

 

JDigital – Spanish Association of Online Gambling

 

Non-profit organisation whose main objective is to look after the interests of the online gambling industry in Spain. It is integrated into Adigital. Works towards a competitive, positive regulation allowing a safe and open market: 
http://www.jdigital.es/

 

Autonomous Community Gambling legislation

Use this link to help source legislation: http://www.bledajuegos.es/cuadros/REGLAMENTO%20DE%20APUESTAS.pdf

 

As we have referenced in the text on several occasions, Spain’s 17 autonomous communities set out additional;/ complementary Gambling legislation, some of which addresses marketing communications. We have sourced and assembled what we can, though we do not present it as exhaustive. The paper available here includes legislation from:

 

Madrid

Andalucia

Aragon

Asturias

Valencia

 

 

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Read more

General

SECTION E LINKS/ SOURCES

 

 

EUROPEAN LEGISLATION 

 

GDPR

 

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

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB

 

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

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016: 

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

 

Four recent and significant papers in the GDPR context:

 

 

Commercial practices: UCPD


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

 

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

 

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

https://eur-lex.europa.eu/eli/dir/2005/29/oj

Guidance: On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). 

 

 

The Omnibus Directive 

 

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

 

Pricing

 

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

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

 

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

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

 

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

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

 

E-privacy

 

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

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

 

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

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

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

E-commerce

 

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

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

 

 

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EU Commission guidance environmental claims

 

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

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

 

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

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

 

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

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

 

 

NATIONAL LEGISLATION 

 

Advertising

 

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

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

Unofficial English translation of key clauses inc. 2022 amends:

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

 

Unfair competition

 

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

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

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

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

 

 

Consumer protection/ distance selling

 

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

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

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

Other relevant articles in English here:

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

2014 Ministry translation of full law EN

 

Pricing

 

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

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

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

 

 

Channel legislation

 

TV, Radio, VOD

 

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

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

English translation of key clauses:

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

 

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

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

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

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

 

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

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

English translation of key clauses:

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

 

Direct mail

 

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

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

 

E-commerce

 

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

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

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

 

Data protection 

 

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

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

 

Regulatory authority

 

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

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

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

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

 

Sales promotions

 

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

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

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

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

 

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

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

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

 

 

INDUSTRY CODES

 

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

 

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

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

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

 

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

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

GRS non-binding unofficial translation of the key articles:

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

 

Influencers 

 

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

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

 

Data processing

 

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

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

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

 

Cinema

 

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

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

 

Environmental advertising

 

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

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

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

 

Spanish marketing association

 

Ethical code:

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

 

IAB Spain/ Europe

 

IAB Spain:

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

Legal guides:

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

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

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

IAB Transparency and Consent Framework: 

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

 

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

 

INTERNATIONAL SELF-REGULATION

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

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

 

 

Chapter A . Sales Promotion

Chapter B.  Sponsorship

Chapter C.  Direct Marketing and Digital Marketing Communications

Chapter D . Environmental Claims in Marketing Communications

 

Additional ICC Guidance and Frameworks

(non-exhaustive)

 

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

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

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

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

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

ICC Guide for Responsible Mobile Marketing Communications

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

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

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

 

 

WFA

World Federation of Advertisers

 

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

https://www.wfanet.org/

This is their ‘GDPR Guide for Marketers’:

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

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

EASA

 

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

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

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

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

And on Digital Marketing Communications here:

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

Influencer Marketing:

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

 

ESA

 

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

http://www.sponsorship.org

The ESA code of Conduct is here:

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

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

 

FEDMA

 

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

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

 

 

NATIONAL ASSOCIATIONS 

 

AEA

 

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

http://www.anunciantes.com/

 

AEPE

 

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

http://www.aepe.org/

 

Opt-out Register 

 

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

https://www.listarobinson.es

 

 

OTHER REGULATORY AUTHORITIES

 

CNMC

 

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

 

 

 

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Read more

International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website:  'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:

https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/

Downloaded:

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

Translation of the code into eleven languages is here

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC guidance documents

 

ICC Guidance on Native Advertising (May 2015). 

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

 

ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility.  It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-alcohol-marketing-communications-2019.pdf

 

ICC toolkits

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':

https://www.iabuk.com/goldstandard

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

IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising 

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

 

 

ICAS

 

From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook

https://icas.global/about/

 

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

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

 

Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

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

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

http://www.easa-alliance.org/products-services/publications/best-practice-guidance 

 

EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

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

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy

 

WFA

https://wfanet.org/about-wfa/who-we-are

 

‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’

 

Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).

https://wfanet.org/leadership/planet-pledge

 

The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

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

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board: 

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016:

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

 

 

 

Key Directives in marketing communications

 

Privacy

 

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

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

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

 

E-commerce

 

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

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

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commercial practices 

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: 
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. 

 

 

The Omnibus Directive 

 

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

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

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

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

 

 

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