Unearthing illicit practices in advertising: how to determine if an ad violates legality

Unearthing illicit practices in advertising: how to determine if an ad violates legality

Advertising stands as a potent force in the contemporary world, capable of influencing our decisions and shaping our perceptions. However, in its quest to captivate the audience’s attention, ethical and legal boundaries are at times inadvertently crossed.

In this article, we will delve into the intricate terrain of illicit advertising, exploring its diverse facets and comprehending the responsibilities that lie on advertisers and regulators.

Regulation of Illicit Advertising in Spain

The Spanish General Law of Advertising dedicates its second Title to illicit advertising. Within this regulation, scenarios of advertising that are deemed illegal are enumerated. This includes the most common cases of illicit advertising, namely, unfair practices.

In addition to the above, AUTOCONTROL, acting as an independent self-regulatory body in the industry in Spain, has developed a code of advertising conduct and a wide range of sector-specific codes of conduct in advertising matters.

A significant portion of these have been ratified by the majority of major advertisers and agencies. As a result, their provisions have achieved a level of compliance in the sector close to that of binding legislation drafted by lawmakers.

Among the sectors regulated by codes of conduct that AUTOCONTROL has developed, examples include perfumery and cosmetics, toys, and advertising conducted by influencers. Therefore, the aforementioned sources constitute the main pillars of regulation in this field.

What Constitutes Illicit Practices in Advertising

The truth is, there are currently numerous advertising practices considered illicit. Broadly speaking, these practices can be divided into the following categories:

• Advertising Contrary to the Spanish Constitution: This category includes advertising practices that violate an individual’s dignity or portray women in a demeaning manner or associated with stereotypical behavior.
• Advertising Affecting Minors: In accordance with article 3.b of the General Law of Advertising, “advertising directed at minors that encourages them to purchase a good or service, exploiting their inexperience or gullibility, or in which they appear persuading parents or guardians to make a purchase” is prohibited. Additionally, advertising that depicts minors in dangerous situations without justification or misleads about the characteristics of products, their safety, or the child’s necessary abilities to use them without causing harm to themselves or others is also prohibited.
• Subliminal Advertising: This encompasses any type of advertising that uses stimuli imperceptible to consumers’ senses with the aim of influencing them without their awareness. This type of advertising is not easily detectable, as qualified technical means are required, which may be why it is not a type of offense that has been frequently penalized.
• Advertising Contrary to Sectorial Legislation on Certain Products and Services: The Spanish legislator has developed a significant set of sector-specific rules in advertising matters, with the regulation of the financial and banking sector, activities related to health, the food sector, and the audiovisual communication and broadcasting sector standing out for their magnitude.
• Misleading, Unfair, and Aggressive Advertising, in accordance with the Unfair Competition Law: Undoubtedly, this is the broadest block of advertising offenses, as well as the one most commonly violated. As a result of the approval of Directive 2006/114/EC by the European Union (and later on Directive 2019/2161), Spain had to develop in detail certain illicit practices towards consumers in its legal system, and the Unfair Competition Law emerged as the appropriate means to do so. Currently, this law establishes a wide range of illicit practices towards consumers that complement the list already foreseen by this law. Broadly speaking, the offenses currently reflected in the Unfair Competition Law can be divided into three main categories: misleading advertising, aggressive advertising, and unfair advertising.

How to Determine if an Ad Violates Legality

Given this extensive framework of offenses, caution must be exercised when developing an advertising campaign. While the safest way to ensure the compliance of your campaigns with current legislation is to seek advice from lawyers specialized in the field, there are certain best practices that can be implemented within your activity to reduce risks:

Evaluate the content of the ad

• Accuracy and precision: The ad should not contain false, misleading, or potentially deceptive information.
• Respect for fundamental rights: Ensure the ad does not violate rights such as dignity, honor, privacy, or the image of individuals.
• Non-discrimination: The ad should not promote discrimination based on gender, race, religion, sexual orientation, etc.

Consider the target audience

Assess if the ad is directed at an appropriate audience. For example, some products or services may have age-related restrictions.

Familiarize yourself with applicable advertising rules

Advertising rules that include sector-specific legislation if applicable. However, remember that the interpretation of the legality of an ad can be subjective and may depend on local jurisprudence and regulator interpretations. Therefore, in case of doubt, it is important to seek legal advice.

At Letslaw by RSM, we have digital lawyers specialized in advertising law. Do not hesitate to contact us if you need advice in this area, and we will do our best to provide you with individualized service tailored to your needs.