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

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

4. 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
5. Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
6. 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
7. 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 

Information requirements from legislation

Article 12 Book XII and Q.16 Spamming Q&A

These requirements apply to all commercial communications that are part of or that constitute information society services 

• Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, and including its presentation.  If this is not the case, it shall contain the word: ‘advertising’ (reclame/ publicité) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
   
  • The word ‘advertising’ is only required if the advertising nature is not immediately clear. This assessment is made on a case-by-case basis according to the circumstances
  • For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain the word 'advertisement'
  • On the other hand, the more the advertising banner adopts a similar design to the non-advertising elements of the site, the less likely this banner will be considered 'identifiable' as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from just informative messages, if it wants to avoid having to mention the word 'advertising' (Q. 16, Point 1 in FPS Economy: Spamming Q&A)
     
• The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
• Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions to take advantage of the offer/ participate should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
   
  • The explanatory memorandum states: "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)

Article 6 Book XII 

Note: this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’

• § 1. In addition to other legal and regulatory information requirements, every service provider shall ensure that the recipients of the service and competent authorities have easy, direct and permanent access to at least the following information:

1. the name or the trade name of the service provider
2. geographic address at which the service provider is established
3. contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
4. where applicable, the business number (i.e. business registration number)
5. in the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
6. regarding regulated professions:

1. the trade association or professional body to which the service provider is registered
2. the professional title and the state where has been granted
3. a reference to the applicable professional rules and means to access them

7. where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in Article 50 of the Code on VAT
8. codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically

• § 2. Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included

GDPR

Privacy issues should be reviewed with specialist advisors 

• Processing personal data (that which can identify an individual) may occur across a number of online channels: as those channels may also be subject to specific privacy rules it's not always clear which rules to follow when the GDPR definition of 'data processing' Defined as any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction Art.4 GDPR can 'cross' various marketing techniques/ channels
• We show the specific channel rules in the media that follow (and some above), but point out that GDPR may also need to be observed if processing personal data. Advisors will determine which/ both to follow
• In the event that consent is the basis for lawful processing under GDPR then the definitive guidance is from the Article 29 Working Party (now the European Data Protection Board) Guidelines on consent under Regulation 2016/679 (May 2020)
• The national DPA’s Recommendation No 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR) provides national guidance. From Para 93 Profiling. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
• IAB Europe Transparency and Consent Framework is here. See references to compliance in our Section A Overview
• European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here

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

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 

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)
 

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

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

• 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  

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

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

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

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

Effective 19 January 2022

• OBA, like any other advertising, is subject to the general rules set out in the earlier content section B, and any sector-specific content rules. Principal source of general rules is the ICC Advertising and Marketing Communications Code (EN)
• Article 29 Working Party (now the EDPB - see below) Opinion 2/2010 on OBA is a bit ancient, but may be significant 
• Key profiling guidance is from the European Data Protection Board, in the context of GDPR rules: Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, linked here
• From the national DPA Recommandation 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR). Profiling is covered from Para 93​

Self-Regulation of OBA/ IBA

• Chapter C ICC Advertising and Marketing Communications Code: Direct Marketing and Digital Marketing Communications; Article C22 Provisions for Interest-Based Advertising (IBA). Note that the ICC have re-named OBA as IBA 
• Full IBA/ OBA provisions from the Chapter have been placed in a back-up file here; alternatively, see the linked ICC Code above 

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).  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

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

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

Applicable regulation and opinion

• ICC Resource Guide for Self-Regulation of Online Behavioural Advertising (OBA)
• Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
• Algorithmic profiling & online behavioural advertising January 2022 is a thorough and helpful round-up from Gilbert and Tobin via Lexology of the way in which OBA works and some of the emerging regulatory pressures from, for example, the Digital Services Act, around the practice
• Provisions for Interest-based Advertising (IBA/OBA). These have been extracted from the 2018 ICC Advertising and Marketing Communications Code Chapter C and uploaded here; selected key rules below
• OBA, like any other advertising, is subject to Content rules. in this context, the principle source of international rules is the ICC Code linked above 

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

Article 29 Working Party* documents

• Opinion 2/2010 on online behavioural advertising here
• Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising here 
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679

*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

• 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

​

KEY CLAUSES FROM LEGISLATION 

Electronic mail is defined as ‘any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.’ (Art. 2.2 Book XII ELC) 

B2C/ B2B: Opt-in system; unsolicited email commercial communications

• Electronic mail may not be sent for marketing purposes without the free, prior, specific and informed consent of the recipient (Art. 13 (1) Book XII ELC. Also inferred from article 110 (2) Book VI ELC

Two exceptions to the opt-in principle (Art. 15 RD 2003)

The prior, free, specific and informed consent of the recipient is not required if the recipient is:

1. An existing customer or client (natural or legal persons; so applicable to B2C / B2B), in which case the following conditions must be met:
    

1. The sender has obtained the electronic contact details of its customers in the context of the sale of a product or the provision of a service, and in compliance with the privacy laws (Art. 1 (1a) RD2003)
2. The electronic contact information is used exclusively in relation to similar products or services, which the sender itself provides (Art. 1 (1b) RD2003). See conditions in linked file
3. The customers are given the opportunity to object, free of charge and in an easy way, to use of their electronic contact details for marketing purposes, upon collection of these details (Art. 1 (1c) RD2003). They will also need to be given the opportunity to opt out at each subsequent message (as per Art. 13 (2) Book XII)
    

2. A legal person (i.e. B2B) and the e-mail address used for the mailing is of an impersonal nature (Art. 1 (2) RD2003); applicable to generic email addresses such as ‘info@, ‘contact@.... Where the email address is personal e.g. firstname.surname@company.be, it is regarded as an individual’s address, regardless of whether used for business or personal purposes, and requires consent (Commentary RD 2003)

INFORMATION REQUIREMENTS

Article 12 Book XII ELC for commercial communications by email

• The commercial communication must be clearly and immediately identifiable as such upon receipt. If this is not the case, it must contain the word: ‘advertising’ (‘reclama/ publicité’ in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
• The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable as such (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
• Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
• Article 6, Book XII (EN) shows information that must be made available in an Information Society Service (e-Commerce) context; this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’.

Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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

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
 

7. 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)
8. 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

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

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

GENERAL INFORMATION REQUIREMENTS 

Article 6, Chapter 3: Information and transparency; Book XII CEL

Every service provider Definition Provider of an Information Society Service, in turn defined as any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service must render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

1. The name or the trade name of the service provider
2. Geographic address at which the service provider is established
3. Contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
4. Where applicable, the business registration number
5. In the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
6. Regarding regulated professions 
    
   1. The trade association or professional body to which the service provider is registered;
   2. The professional title and the state where has been granted
   3. A reference to the applicable professional rules and means to access them

7. Where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in article 50 of the code on VAT
8. Codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically  

INFORMATION IN ADVERTISING 
(Art. 12, Book XII)

• Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: 'advertising' ('reclame / publicité') in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
• The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII)
• Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)

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

Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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

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 business, and, where applicable, the geographical address and the identity of the business on whose behalf it 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. Where appropriate, the existence of a right of withdrawal or cancellation

VIRAL

Defined by EASA in their DMC Best Practice as  ‘Any advertising that propagates itself. In a digital media context it can be defined as a marketing technique that seeks to use pre-existing social networks to produce increases in brand awareness.’

CASE LAW AND UGC

• In a Commercial Court decision in Huy (30/06/2008) where an online dating site had a specific section on the site called "Make Some Noise" inviting users to enter email addresses of their friends in return for a higher popularity-rating, it was held that prior consent would have to be obtained (in accordance with Art. 13 (1) Book XII CEL) and that the collection of data for such purposes would have to comply with the Data Protection Act, i.e. fair processing information
• Once created, sponsored or endorsed by the marketer (the original content may have been user-generated i.e. UGC), content is subject to the rules set out in our Content Section B, except those for broadcast, primarily from the ICC Advertising and Marketing Communications Code 

INFLUENCER MARKETING 

Communication Centre Recommendation for Influencers (EN)

The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them

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

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
    

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

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

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

EU Guidance/ opinion documents

• Opinion 15/2011 on the definition of consent here 
• GDPR 25/05/2018: Guidelines on consent under Regulation 2016/679 here
• Guidelines 8/2020 on the targeting of social media users adopted April 2021

• 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

1. FACEBOOK

• https://www.facebook.com/policies/ads (also includes references to Instagram)
• branded content: https://www.facebook.com/policies/ads/restricted_content/branded_content

2. INSTAGRAM 

• https://help.instagram.com/116947042301556/?helpref=hc_fnav&bc[0]=368390626577968&bc[1]=835763516568404
• https://www.facebook.com/policies/brandedcontent/

3. TWITTER:

• https://business.twitter.com/en/help/ads-policies/introduction-to-twitter-ads/twitter-ads-policies.html
• https://business.twitter.com/en/help/troubleshooting/how-twitter-ads-work.html
• Promotions/ contests on Twitter:
  https://help.twitter.com/en/rules-and-policies/twitter-contest-rules

4. YOUTUBE: advertiser friendly content guidelines here:

• Ad Policy Overview
• Adult content in ads
• Advertisers' Live Streaming Programmes

• Paid product placements and endorsements
• Advertising on YouTube Kids
• Age targetting and ads 
• Youtube’s contest policies and guidelines
• Homepage advertiser Guidelines
• Tell a friend
• Unbranded ads or Brand Channels

5. SNAPCHAT:

• https://www.snap.com/en-GB/ad-policies/
• Contest/ promotions rules: https://support.snapchat.com/en-GB/a/promotions-rules
   

6. GOOGLE +

• Promotions/ Contests:
  https://www.google.com/intl/en_uk/+/policy/pagescontestpolicy.html
•  For advertising on the Google network:
  https://support.google.com/adwordspolicy/answer/6012382?hl=en-GB&ref_topic=1626336  /
  https://support.google.com/adwords/answer/6316?hl=en-GB

​

7. TIK TOK

• Advertising guidelines

LEGISLATION

• Book VI of the Code of Economic Law: 'Market Practices and Consumer Protection'; key extracts EN  (Article 100 (11) and (22) Book VI CEL)

• Book XII of the Code of Economic Law EN (Art. 12)

All media

• The following misleading commercial practices shall in all circumstances be considered unfair (and thus prohibited under Art. 95) where they have as their object:

  • Using editorial content in the media to promote a product where a business has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (Art. 100(11) Book VI);

  • Falsely claiming or creating the impression that the business is not acting for purposes relating to its professional activity, or falsely representing itself as a consumer (Art. 100 (22) Book VI)

Online

• Advertising which is part of or constitutes an information society service shall comply with the following conditions: immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: “advertising” (“reclame / publicité”) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)

  • The word "advertising" is only required if the advertising nature is not immediately clear at the first receipt and at the first sight; the advertisement must therefore contain the word "advertisement" only if it cannot be distinguished as such from its reception. In principle, therefore, it is not mandatory systematically to include "advertising"

  • Assessment should be made on a case-by-case basis according to the circumstances of the case (the text indicates "given its overall effect and including its presentation"). For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain "advertisement"

  • On the other hand, the more the advertising banner adopts a similar design to the non-advertising site, the less likely it will be considered identifiable as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from purely informative messages, if the inclusion of ‘advertising’ is to be avoided (Q. 16; Point 1: FPS Economy Q&A)

• The natural or legal person on whose behalf the advertising is made shall be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)

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

2.1. KEY PROVISIONS FROM LEGISLATION 

2.1.1. Invitation to purchase

Article 99, Book VI Code of Economic Law (EN)

§ 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 business, and, where applicable, the geographical address and the identity of the business on whose behalf it 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. where appropriate, the existence of a right of withdrawal or cancellation

2.1.2. B2C: Opt-out

• Individual subscribers can opt-out from direct mail advertising using:

• The Robinson List/ Mail Preference Service which allows all ‘natural persons’ i.e. individuals/ consumers, to register their details for free, for an indefinite period of time, to indicate that they do not wish to receive unsolicited addressed postal mail for direct marketing purposes referenced by Art. 110 Code of Economic Law
• If applicable according to specialist advice, their right to object to processing for direct marketing purposes under the GDPR (Art. 21.3; key articles here)

Key points of Robinson list

• It does NOT cover or apply to (CPP Recom):

• Unaddressed mail such as that to 'The Occupier' or door-to-door advertising (mail drops); so applies only to addressed mail
• Promotional mail sent to an individual in the context of and at the address of their professional role (i.e. B2B); only ‘natural persons’ can register, not companies
• Addressed promotional mail to a party’s own customers or individuals who, after their inclusion in the Robinson list, expressed the desire to receive such mail

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

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)

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

 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

 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

 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

 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

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

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

The European Sponsorship Association (ESA) may also be able to help/ inform

 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

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

LEGISLATION

• Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players, referred to as 'Gaming Act' hereafter EN (translation from Gaming Commission)
• Lotteries Act of 31 December 1851 FR - NL
• Penal/ Criminal Code; Articles 301 to 304 of the Criminal Code determine the cases in which the organisation of lotteries and related activities are infringements FR - NL
• Royal Decree of 9 February 2011 establishing the Code of Ethics for telecommunications FR - NL / EN key provisions. Chapter 10, S. 4 Articles 57–71 re premium rate services 
• Book VI of Code of Economic Law FR - NL Extracts EN. Title IV Prohibited practices: Art 100 (19) and Art. 103 (8) for some competition requirements/ prohibitions. Key clauses shown below 
• Book XII of Code of Economic Law FR - NL. Extracts EN. Art. 12 points 3 & 4 re promotional offers and conditions; clauses shown under the para below 
• Product Pricing Directive 98/6/EC (PPD) implemented via Royal Decree of 30 June 1996 concerning the indication of the price of products and services FR-NL; the PPD was amended by Directive 2019/2161, adding rules re promotional pricing extracted here. Guidance from the Commission on the application of this new article 6a is here. The rules were required to be in force in member states by 28 May, 2022
• Belgium eventually transposed via the law of 8th May 2022 (FR) amending Books 1, 6 and 15 of the CEL (Code of economic Law), which faithfully transposed the directive's rules 

Commercial practices regarded as unfair in all circumstances

Misleading commercial practices

• Bait advertising: making an invitation to purchase: Definition means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase (Art. 1.8 (23) Book I ELC) products at a specified price without disclosing the existence of any reasonable grounds the business may have for believing that it will not be able to offer for supply or to procure another business 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 (Art. 100 (5) Book VI ELC)

• Bait and switch: making an invitation to purchase products at a specified price and then, with the intention of promoting a different product:
  
   
  • Either refusing to show the consumer the product proposed
  • Or refusing to take orders for it or deliver it within a reasonable time
  • Or demonstrating a defective sample of it (Art. 100 (6) Book VI CEL)
    
     
• 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
• Claiming that products are able to facilitate winning in games of chance 
• 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 
• Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
• Describing a product as 'gratis' (gratuity / gratis), 'free' (à titre gracieux / voor niets), 'without charge' (sans frais / kosteloos) or similar if the consumer has to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item 
  (All above from art. 100 CEL)

Aggressive commercial practices

• Creating the false impression that the consumer has already won, or will win, whether or not by accomplishing a formality, a prize or other equivalent benefit
   
  • When in fact either there is no prize or other equivalent benefit
  • Or accomplishing any formality in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost (Art. 103 (8) Book VI CEL)

Online advertising for promotional offers and promotional competitions

• Advertising which is part of or constitutes an information society service shall comply with the following conditions (Art. 12 Book XII):
   
  • Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
  • The explanatory memorandum states "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)

Prize draws

Promotions in which the winner is chosen on the basis on an element of chance (promotional games of chance)

• Such promotions are permitted unless they constitute a “game of chance”, which are only permitted subject to a licence, or a “lottery”, which is prohibited under Article 1 Lotteries Act, subject to exceptions shown below
• This is a complicated area: both 'games of chance' and 'lotteries' are defined so broadly that promotional games of chance in Belgium are regarded as prohibited

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

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

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

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

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

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