Intellectual Property Law

Unlawful Advertising Law in Spain

By IBLS Editor

Traditional advertising rules gained relevance in the online commercial world.  Greater advertisement exposure and especial government enforcement units are some of the reasons that prompted assessment of advertising rules when advertising online.   Most countries have applied traditional advertisement rules to online advertisement; particularly, those rules regarding unlawful and deceptive advertising.  This article explores Spain's traditional unlawful advertising rules equally apply to Internet advertisement.   

Law 34/1988 of November 11 constitutes Spain's key advertisement legislation.  This law incorporates European Community law on deceptive advertising found in EEC Directive 84/450.  Law 25/1994 of July 12 and law 22/1999 of June 7 specifically deal with radio and television advertisement in Spain.  These laws contain especial rules for advertisement of alcoholic beverages, medicines, health products, housing, and motor vehicles.

Law 34/1988 broadly defines advertisement as all type of communications by a public or private, physical or legal persons in the exercise of commercial, industrial, craft, or professional activity for the purpose of directly or indirectly promoting the contracting or selling of goods, real property, services or rights, and obligations. Thus, this ample definition of advertisement subjects every online advertisement of goods or services, no matter its industry and whether it is a natural or legal person, to law 34/1988.        

Law 34/1988 expressly lists those practices considered unlawful advertisement; they include (1) deceptive advertisement; (2) unfair advertisement; (3) subliminal advertisement; (4) advertisement that violates rules explicitly designed for the advertisement of certain products or services; and (5) advertisement that attacks the dignity of a persons.   

Deceptive Advertisement

Deceptive advertisement is defined as advertisement that misleads or is capable of misleading the public and affects the public's financial capacity, or that harm or capable of harming competitors.   To determine whether an advertisement is deceptive, law 34/1988 requires analyzing the following elements,

(1) products' or services' traits.  This includes origin, nature, composition, intended use, suitability, availability, and novelty; quantity, quality, category, specifications, and denomination; manufacture or introduction date; expected use results; harmful or hazardous effects.

(2) price or elements considered when pricing goods or services.

(3) how to obtain the products and services, and delivery methods.

(4) reasons for the products' or services' offer.

5) advertisers' qualifications and rights.  This includes advertisers' identity and professional qualifications, and intellectual property rights.

Unfair Advertisement

Spanish law defines unfair advertisement as the advertisement that discredits, directly or indirectly, the products or services, including trademarks, symbols, and commercial names, of a business or natural person.  Additionally, unfair advertisement is the one that creates confusion or is capable of creating confusion regarding the competitors' products or services; this includes trademarks, symbols, and commercial names.   Comparison advertising that do not follow the specific rules of law 34/1988 may constitute unfair advertisement as well.  

Subliminal Advertisement

Article 7 of law 34/1988 defines subliminal advertisement as the advertisement that produces effect on the public without conscious perception.  Subliminal advertising produces stimulus without directly targeting individuals' senses. 

Advertisement Rules for Specific Industries

Law 34/1988 establishes the advertisement of certain industries' products or services will be expressly regulated laws.  For example product subject to specific advertisement rules include sanitary products; products harmful for the individuals' health or security; financial products; gaming, lotteries, and sweepstakes; medicines, alcoholic beverages, etc.    

Cause of actions arising from the violation of these advertisement rules may be filed before ordinary tribunals (usually trial courts) in the defendants' jurisdiction.  The "Asociacion para la Autorregulacion de la Comunicacion Comercial" is a Spanish private association that assures compliance of Spanish advertisement rules in all media.  Commercial or natural persons may voluntarily join this organization and adhere to its codes of conduct.  In conclusion, Spanish advertisement rules are in harmony with EU rules on unlawful advertisement and similar to the U.S. advertising rules.

Full post as published by IBLS Internet Law Blog on June 23, 2008 (boomark / email).