SECTION A OVERVIEW

Updates since Jan 2022

IAB TCF Framework and GDPR. Feb 2022

Commission guidance reduced prices 

Financial Penalties Upon Influencers July 2022

Google says cookie here to stay until 2024

UOKIK Recommendations Influencer Advertising (EN)

Above 26/9/2022

UOKIK Tool for tagging ads; Oct 2022

Omnibus Directive 'soon to be implemented'

Bird&Bird LLP/ Lex November 2, 2022

More Influencer guidance from UOKIK (EN)

Wardyński & Partners/ Lex November 3, 2022

EU green claims regulation December 2022

Omnibus Directive implementation; e-commerce rules

Above from Taylor Wessing December 2022

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

Above from NYT Jan 2023

EASA update on below October 18, 2023

Proposal for a Directive on Green Claims. March 22, 2023

Unfair Competition - How To Deal With It? Part 3

Squire Patton Boggs March 28, 2023

Permanent promotions mislead consumers
Osborne Clarke/ Lex. April 4, 2023 re OCCP

The DSA in Poland and EU June 7, 2023 

'Surreptitious' advertising fined by UOKIK (EN)

Above EN from UOKIK 28 August, 2023

Links reviewed Nov 2023; 2 links renewed

UOKIK: Omnibus Directive, the regulation of influencer marketing and dark patterns

Osborne Clarke September 26, 2023/ Lex

Polish regulator zeros in on influencers - 2022-2023 developments in a nutshell. Bird & Bird LLP/ Lex Sept 22, 2023

And a further follow-up is news from Osborne Clarke/ Lex September 5, 2023 of heavy fines handed out to transgressors

A follow-up from UOKIK to the below is the announcement Oct 2022 (EN) of a new AR tool for tagging ads

UOKIK Recommendations Influencer Advertising (EN) announced 26/9/22

Above is link to UOKIK news story, full recommendations here (EN) and GALA/ Lex commentary here 

UOKIK, the Office of Competition and Consumer Protection, announced October 2021 an investigation into the activities of Influencers on social media platforms. Their research 'shows that a lot of commercial content on influencer profiles on Instagram, YouTube, Facebook or other social media sites is not labelled as advertising at all. Other is marked insufficiently, e.g. only by the hashtag #ad, which may be incomprehensible to Polish internet users.' New guidelines are threatened and fines for those transgressing. ‘We want to introduce order to the market of sponsored content in social media.’ The result of UOKIK's intervention is reported here, a July 2022 piece from GALA/ Mondaq which sets out how six decisions have been made and penalties applied to Influencers amounting to 30,000 euros, notwithstanding the right of appeal. See announcement above.

SELF-REGULATION

The Polish Self-Regulatory Organisation Rada Reklamy (RR) Code of Ethics in Advertising (PO; RR EN) is based on the ICC Advertising and Marketing Communications Code (ICC Code) and covers all advertising except for social (non-profit) and political campaigns. The Polish Direct Marketing Association SMB also administer a Code of Ethics (PO) and manage the Robinson List. The Code of Good Practice in Mobile Advertising PO / EN, assembled by mobile operators in conjunction with IAB Poland, sets out rules for SMS/MMS/wap-push, as well as e.g. banner ads on mobile pages. 

MARCOMS CONTENT LEGISLATION 

The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) implements the UCP Directive 2005/29/EC and applies to B2C practices. The Unfair Competition Act UCA PO / EN (note on translation here) protects businesses from acts of unfair competition (art. 3.1), implementing the Misleading and Comparative Advertising Directive 2006/114/EC. In broadcast, the key Broadcasting Act is shown below under channel legislation. This act includes some content as well as placement rules, the former of which are spelt out in our following section B and also found here in English. Article 16b reflects the content rules established in the AVMS Directive related to the protection of minors, discrimination, and e.g. the 'encouragement of behaviour prejudicial to health, safety or environmental protection.' This article from GALA/ Mondaq in February 2022 Controversial Advertising sets out the legislative backdrop in the context of some Polish brands taking a stance on some of the higher profile social issues.

The Law on Counteracting Unfair Market Practices was amended by the Act of December 1, 2022 amending the Act on consumer rights and certain other acts (PO) and effective January 1, 2023. This act transposed into the UCPA's articles 5, 6 and 7 requirements of Directive 2019/2161 relating to search rankings, consumer reviews and the 'internationalisation' of campaigns Directive's clause prohibits 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. Not all specific to marketing communications, but significant context. The UCPA's consolidated text is here in Polish. There's a helpful December 2022 piece from Taylor Wessing on the implementation in English and Polish here and A new reality dawns for Polish e-commerce from Osborne Clarke/ Lex January 2023 covers similar territory but adds some UOKIK investigations and EU work. Penalties for companies publishing false reviews from Bird&Bird/ Lex Jan 2023 shows the impact of the new legislation as applied by UOKIK.

Channel legislation

Electronic communications and privacy

Q&A: protecting privacy and confidentiality in Poland
SKP Ślusarek Kubiak Pieczyk June 30, 2023

The Polish Data Protection Authority inspection plan for 2023
CMS Cameron McKenna Nabarro Olswang LLP/ Lex. January 24, 2023

The Telecommunications Act 2004 PO / EN implements the ‘Cookie Directive’ 2009/136/EC; the new Personal Data Protection Act of May 10th 2018 PO / EN (link temporarily bust) implements/ recognises the GDPR and its accompanying Directive 2016/680. The Data Protection Authority is UODO;  their Ten Tips on GDPR are here (EN), albeit written for the consumer. The Law on Providing Services by Electronic Means 2002 (LPSEM) PO / EN implements the e-Commerce Directive 2000/31/EC and elements of the e-Privacy Directive 2002/58/EC. These three national Acts, with the GDPR, form the core legislation in the processing of personal data and the protection of privacy. The rules impose information obligations on data controllers, confer the right to opt out of direct marketing, and regulate unsolicited marcoms via different media channels: the opt-in rule generally applies, with the exception of direct postal mail. The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN). Rules by channel in our following section C.

Broadcasting/ AV

The Broadcasting Act of 29 December 1992 PO / EN (GRS EN), incorporating rules from the AVMS Directive 2010/13/EU, regulates advertising, teleshopping, PP, and sponsorship on TV, Radio, and VOD. The Amend to the Broadcasting Act of 11th August 2021 (PO) transposing Directive 2018/1808 came into force primarily on November 1st 2021. For our purposes, the most significant aspects of the amend which, broadly, extends the scope of the AVMSD online, are requirements for video-sharing platforms, set out here by Hogan Lovells/ Lexology. This Liability Of Video-Sharing Platform Providers Under The New Rules November 2021 from GALA/ Mondaq lifts the bonnet on this legislation. The regulatory authority is The National Broadcasting Council KKRiT. 

SPECIFIC CLAIM AREAS
Environmental claims

EASA update on below October 18, 2023

Proposal for a Directive on Green Claims. March 22, 2023

European Commission press release on the above here 

Helpful summary and commentary here from GALA/Lex also March 22

The RR Code of Ethics in Advertising (EN) includes Chapter V Advertisements Containing Ecological Information, closely aligned with Chapter D Environmental Claims from the ICC’s Advertising and Marketing Communications Code (EN). Additional guidance on the use of environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021). Claims may be assessed against the Unfair Commercial Practices Act UCPA (referenced above); refer to Commission Guidance on application of the UCPD (December 2021) Section 4.1.1. on environmental claims. Also helpful in this context is the EU Compliance Criteria on Environmental Claims (2016) from MDEC EN. The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7 October 2021, Google launched a policy for Google advertisers, publishers and YT creators that prohibits ads/ monetization for content that contradicts consensus around climate change; more here. See also Rada Reklamy's Green Project. This January 2023 piece Greenwashing: How to communicate without misleading? from Wardyński & Partners/ Lex covers the activity of the Polish regulator (UOKIK) and some practical guidance. 

Pricing

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

There are some new requirements on the transposition of Directive 2019/2161/EU, known as the Omnibus Directive, which makes a number of amends to Directives 98/6/EC, 2005/29/EC and 2011/83/EU. Article 2 of the Directive, introducing article 6a into Directive 98/6/EC (the Product Pricing Directive) covers price reduction 'announcements’, which includes advertising. This September 2021 article from GALA/ Mondaq set out the implications for Polish law. Commission guidance on the article 6a is here. Transposition effective January 1, 2023 happened via the Act of December 1, 2022 amending the Act on consumer rights and certain other acts (PO). Those 'certain other acts' include the Law of 9th May 2014 on Information on Prices of Goods and Services PO; article 4 of that act is replaced by new provisions which reflect the directive's requirements to list the lowest price that was applied during the 30-day period before a reduction was introduced, in addition to the new price; consolidated text in Polish is here.

The Law on Counteracting Unfair Commercial Practices includes a number of references to pricing in B2C communications, e.g. in relation to ‘bait and switch' advertising; see articles 7.5 and 7.6 UCPA (EN inc. 2022 amends). The information obligations under article 6.4 UCPA when advertising constitutes an ‘invitation to purchase’ are also relevant. Rada Reklamy’s Code of Ethics in Advertising contains provisions relating to price: articles 45 Direct marketing; 51 Sales promotions; 11.4 Comparative advertising; 10.1.b Misleading advertising. Details in our following section B.

CJEU case 

The CJEU (Court of Justice of the European Union) judgement in the 2016 Citroën/ZLW case ruled that the final price including VAT and all other price components must be stated, applying Product Price Directive 98/6/EC, which confirms that the selling price should include VAT and Excise Tax. 

Children

See our home page for the sector in full, and point 1.3 in the following content section B

In September 2019 the Children’s Protection Charter was established under the auspices of Rada Reklamy, the Self-Regulatory Organisation. The charter, applicable to signatories, includes rules on e.g. children in the making of commercials. It's set out under Appendix 3 of the Code of Ethics in Advertising (EN), which also carries rules for marcoms to children and young people under Chapter IV.

SECTION B CONTENT RULES

1. SELF-REGULATION 

1.1. Basic principles of advertising 

1.2. Advertising addressed to children and young people

1.3. Advertising with ecological information

1.4. Direct marketing

2. LEGISLATION

2.1. Unfair Commercial Practices Act 

2.2. Unfair Competition Act

2.3. Broadcasting Act

3. SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.1.1. Self-regulation (national)

3.1.2. International self-regulation

3.1.3. Horizontal legislation and guidance

3.1.4. Comparative claims
 

3.2. Pricing

3.2.1. Self-regulation (RR Code of Ethics)

3.2.2. Applicable legislation

3.2.3. Key points from Citroën/ ZLW case

I. SELF-REGULATION

Rada Reklamy Code of Ethics in Advertising PO / EN 

Articles 1 and 2 Scope and article 3 Definitions  (link)

1.1. Basic principles of advertising 

4. Discrimination. Advertising must not contain any form of discrimination, in particular that based upon race, religion, sex or national origin
5. Violence. Advertising should not contain any elements encouraging to acts of violence
6. Anxiety. Without justifiable reasons based, for example, on social grounds and prophylaxis (treatment of disease), advertisements should not motivate for purchase of a product by taking advantage of misfortunes or by causing anxiety or fear
7. Historical objects. Advertising should not be operated in such a way as to endanger artistic or historical objects
8. Exploitation. Advertising cannot abuse the trust of the recipient or exploit his lack of experience or knowledge
9. Identification. Advertiser, promoter, operator and media, each of them only within the scope of its advertising-related activities, will obey the rule, that every recipient of advertising made or distributed with his participation should be able to identify, that particular message is an advertisement

 10. Misleadingness

1. Advertisements should not mislead their recipients, in particular with regard to:

1. important characteristics such as nature, composition, method and date of manufacture, range of use, quantity, origin (also geographical) of the advertised item
2. value of the product and the total price actually to be paid for the product as well as other payment conditions like instalment sales, leasing, credit sales, bargain sales
3. terms of delivery, exchange, return, repair and maintenance
4. guarantee terms
5. intellectual and industrial property rights such in particular patents, names, trademarks, and industrial designs and models
6. official permits or approvals, awards, prizes, medals, and diplomas
7. the extent of the entrepreneur’s benefits for charitable causes

2. Data as well as scientific terms, quotations from technical or scientific publications not considered data within the meaning of the Code, used in advertisements, must indicate their source and cannot be used in a misleading manner. The data must be presented correctly from the methodological point of view. Presentation of statistical data must in particular take into account the rules of statistical inference, including the phenomenon of statistical error

11. Comparative advertising

1. Comparative advertisements are acceptable if they serve the purpose of intensifying competition and public information. Nevertheless, they should not mislead the advertising recipients
2. All references in comparative advertisements must be presented methodologically correctly, including but not limited to information on products, commercial offers, and data
3. Comparative advertisements should be used to compare goods satisfying the same demands or manufactured for the same purpose
4. Comparative advertisements may compare one or more characteristics if such characteristics are verifiable. Price may be one of such characteristics
5. Comparative advertisements should not be likely to mislead the consumers as to the goods offered, trademarks, trade names or other distinguishing elements
6. Advertisements cannot in an unjustified manner inconsistent with the provisions of the Code, and in particular with the content of Article 11 paragraphs 1, 2 and 5 hereof use the full or abbreviated corporate name, name, graphic symbol name or other individualising marks legally belonging to another entity, and use the good name of such an entity. Comparative advertisements, by means of expression used in them, can not discredit or humiliate the competitor and competitor-related circumstances, by presenting him or his product in an unfavourable way

1. Advertisements should not portray or refer to any natural person, including a person generally known in connection, for example, with performing by such person public functions, without obtaining such person’s prior consent, and should not describe or refer to a property of a specific person without such person’s consent, in a way likely to convey the impression of the personal endorsement by such person
2. The provisions of paragraph 1 above shall apply per analogy to entities other than natural persons

13.  Warranties. If the advertisement contains information on a guarantee in extent and within the meaning contained in legally binding terms of sale, it must be available at a point of sale or enclosed with the product and will be transferred to the beneficiary
14. Credit. Presentation of instalment sale, the credit terms or other forms of consumers’ credit must be so framed as not to raise doubts concerning the actual final price of the advertised item, including the amount of cash payment, the amount of advance payment, the interest rate, the credit instalment repayment dates, and other conditions related to that kind of sale
15. Loans. Advertisements informing on money loan offers should not contain any statements likely to mislead the recipients, in particular as to their kind, indispensable security, repayment dates, actual interest costs, and any other possible fees
16. Investments. Advertisements referring to savings or investing methods cannot contain any statements likely to mislead the recipients in particular with respect to the estimated future income, factors affecting the level of such income, and the possible tax reductions
17. Free. Advertisements which may make the recipient believe it is not necessary to pay for the product if such product is not actually available free of charge cannot be used
18. Franchises. 1. Advertisements of franchisers searching for franchisees should not, directly or by implication, mislead as to the scope of help provided, potential payment, work contribution and essential financial assets. The franchiser’s full name and permanent address should be stated
    2. The provisions of paragraph 1 above shall be applicable to advertisements aimed at entering into legal or factual relations with the nature similar in effects to franchise
19. Risk of harm. Advertisements of products which used in a proper way may cause real danger should clearly point out the potential danger related to their use
20. Documentation. The data, recommendations, commercial offers, information, or clarifications concerning the product should be appropriately documented. The documents should be made available on the beneficiary’s demand
21. Animal rights. Advertisements should not promote attitudes that question the rights of animals. Advertisements containing image of animals should be self-restrained, so animals are not portrayed in a way that suggests non-humanitarian treatment of them

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

1.2. Advertising addressed to children and young people; Chapter IV, articles 22-32 from the Code of Ethics in Advertising (EN)

In September 2019 the Children’s Protection Charter, applicable to its signatories, was established and is set out under Appendix 3 to the Code of Ethics. It includes e.g. some rules for producing commercials with child actors. Rules for Children’s marcoms can also be found on the home page of this website

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

1.3.  Advertising with ecological information; Chapter V, articles 33-39 of the Code of Ethics linked above; articles shown below under specific claim areas, Environmental claims

1.4. Direct marketing articles 45-48 of the Code of Ethics in Advertising 

See also the DM header under our following channel section C

2. LEGISLATION

• While advertising regulation is largely a self-regulatory system, legislation plays a part in channel rules 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
• There are three principal legislative influences on marcoms content in Poland; key clauses from each are shown as downloadable files in order to avoid this section becoming too long, and because self-regulation largely covers the bases

2.1. The Law on Counteracting Unfair Commercial Practices PO / EN  (inc. 2022 amends)

The above linked files include amends resulting from the transposition of Omnibus Directive 2019/2161 and therefore carry provisions related to search rankings, consumer reviews and 'internationalisation' of campaigns. This law also carries provisions from transposition of the Unfair Commercial Practices Directive UCPD 2005/29/EC and therefore forms the core legislation in B2C marketing 

2.2. The Unfair Competition Act - UCA PO / EN (Translation note here) 

This act protects businesses from unfair trading, transposing the Misleading and Comparative Advertising Directive MACAD 2006/114/EC​. The above translation carries more provisions but is somewhat dated. The key clauses for our purposes are those related to comparative advertising, shown in English here:
http://www.g-regs.com/downloads/POGenUCAUnfairCompBL.pdf

2.3. The Broadcasting Act (BA; Arts 16.1; 16b; 16c)

http://www.g-regs.com/downloads/POBroadcastingActWRversionb.pdf (EN key clauses)

This act transposes the Audiovisual Media Services Directive 2010/13/EU and therefore carries the marcoms rules related to minors, discrimination, subliminal advertising etc. that are set out below. See final para in this section re amends related to the extension of scope into video-sharing platforms

TV/ Radio; covering advertising, teleshopping, PP, sponsorship

• Commercial communications must be readily recognisable (Art. 16.1)
• It is prohibited to broadcast commercial communications that (Art. 16b (2) BA):
   

1. Directly exhort minors to purchase products or services
2. Encourage minors to exert pressure upon their parents or other persons to persuade them to purchase the products or services being advertised
3. Exploit the trust minors place in parents, teachers or other persons
4. Unreasonably show minors in dangerous situations
5. Are of a subliminal nature

• Commercial communications must not (Art. 16b (3) BA):
   

1. Offend against/ violate human dignity
2. Include any discrimination on grounds of race, sex, nationality, ethnic origin, religion or belief, disability, age or sexual orientation
3. Be offensive to religious or political beliefs
4. Prejudice/ jeopardise the physical, mental or moral development of minors
5. Encourage behaviour prejudicial to health, safety or environmental protection

• Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients, excessive intakes of which in the everyday diet are not recommended (Art. 16b (3a) BA)

The Broadcasting act was amended by the act of August 11th 2021 (PO) that transposed Directive 2018/1808; the Directive extends AVMSD rules online. Content rules are essentially unchanged and shown for the Directive here

3. SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.1.1. Self-regulation (national)

Rada Reklamy Code of Ethics in Advertising: Chapter V - Advertising containing ecological information 

• Advertisements cannot undermine public trust in correctly performed activities undertaken within the framework of natural environment protection (Art. 33)
• Advertisements cannot exploit the lack of knowledge of their recipients in the area of natural environment protection (Art. 34)
• Advertisements cannot contain a message which might mislead the consumers as to environmental protection, including but not limited to through misleading information on characteristics of products or on activities undertaken by the advertiser for environmental protection. Advertisements of entrepreneurs related to specific products or actions cannot without justified grounds extend the advertising effect in the area of natural environment protection to the whole business of the advertiser (Art. 35)
• An environmental claim must relate to the characteristics of the advertised product and must refer to such characteristics of such product that exist throughout the product life or periodically, but in the latter case the advertisement must inform the recipient thereof (Art. 36)
• Advertisements containing general phrases such as “environmentally friendly” or “ecologically safe” cannot be misleading. The information indicating the precise effect of the product in this area must be available at the point of sale, enclosed to the product or shall be presented to the beneficiary in a publicly accessible way (Art. 37)
• Article 38: 1. When advertisements refer to the reduction the quantity (number) of components or elements having an environmental impact, such information cannot be misleading. The information indicating the precise positive effect of the product in this area must be true and available at the point of sale or enclosed to the product and shall be presented to the beneficiary. 2. Advertising claims cannot refer to the absence of components, features or impacts that are not applicable to the given product category. 3. An advertising claim of “…free”, or of the same effect, should only be made when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level. 4. Environmental signs or symbols should only be used when the source of origin (granting or appointing) these signs or symbols is clearly indicated in advertisement, and there is no confusion over their meaning. Such signs and symbols should not falsely suggest that their presence is related to a decision of a government administration authority, local government authority, or other institutions the activity of which is connected with natural environment protection
• Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is available for a significant part of the beneficiaries. Otherwise, the extent and method of obtaining access to the above-described methods should be indicated (Art. 39)

3.1.2. International self-regulation

• There are some international self-regulatory rules, shown in full under the International tab, that are relevant in this context. While the national codes and laws are the rules that drive requirements, and against which adjudications will be made, the ICC’s Advertising and Marketing Communications Code (EN; ICC Code) provides an important international framework, and in some countries plays the role of the national advertising code. In particular in this context, Chapter D of the code
• The ICC Framework for Responsible Environmental Marketing Communications (November 2021) includes under Appendix I an environmental claims checklist, and updated guidance on the use of environmental claims often appearing in marketing communications

3.1.3. Horizontal legislation and guidance

The Unfair Commercial Practices Directive UCPD 2005/29/EC is transposed into Polish Law by the Unfair Commercial Practices Act UCPA PO / EN 

• The UCPD applies to all claims made in B2C commercial practices, including those related to the environment
• Competitors may challenge environmental claims as unfair commercial practices before national courts where claims are assessed against the UCPA/ D 
• EU Compliance Criteria on Environmental Claims (2016) EN. This advice is not legally binding, but fed into the revision of the 2016 Commission Guidance, since updated per below
• On 17 December 2021, the European Commission adopted an updated Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). See section 4.1.1. for Environmental claims. This document is both new as at December 2021 and the definitive guidance across commercial practices/ claim areas covered by the UCPD

3.1.4. Comparative claims

Product comparisons involving environmental claims should be assessed under the criteria set out by the Directive on Misleading and Comparative Advertising MACAD Article4. in Poland, article 16.3 of the Act on Combating Unfair Competition UCA) PO / EN  sets out the criteria under which comparative advertising is allowed. These criteria apply to advertisements which compare the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things (see Art. 4 2006/114/EC / Art. 16.3 Polish UCA): 
 

• Not be misleading, within the meaning of the UCPD
• Compare goods or services meeting the same needs or intended for the same purpose
• Objectively compare one or more material, relevant, verifiable and representative features of those goods and services

Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers

3.2.1. Self-regulation

From the Rada Reklamy Code of Ethics in Advertising

• Advertising must not mislead its recipients, particularly with regard to: the value of the product and the total price actually to be paid for the product as well as other payment conditions like instalment sales, leasing, credit sales, bargain sales (Art. 10.1b)
• Comparative advertising may compare one or more characteristics if such characteristics are verifiable. Price may be one of such characteristics (Art. 11.4)
• Direct marketing activities, including the offers related to direct marketing, should be carried out so as to be understandable for the beneficiary. In particular, the beneficiary should always be able to identify the advertised product and the terms of the offer, including the price (Art. 45 (1))
• Sales promotions should be so devised as to make it easy for the beneficiary to identify clearly the terms of the offer. Care should be taken not to exaggerate the value of the additional benefit and the price of the main product should not be concealed by the promotional activity (Art. 51)

3.2.2. Applicable legislation

Note:  the law under the first 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 should come into force in member states on May 28, 2022, though at the time of writing there has been no transposition in Poland. Commission guidance for the application of the article is here

• Law 9th May 2014 on informing about prices of goods and services PO article 3; the law implements the Product Price Directive 98/6/EC
• The Unfair Commercial Practices Act UCPA PO / EN. See articles 5 and 6
• Key case: Court of Justice of the European Union (CJEU): C‑476/14 (Citroën/ZLW) Judgement and AG Opinion
• Decisions of the President of UOKIK, Office of Competition and Consumer Protection: see two cases here

Other UCPA prohibitions that apply to marcoms that include prices

• ‘Bait’ advertising, which involves 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/ she 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 (Art. 7.5)
• ‘Bait and switch’ advertising, which involves making an invitation to purchase products at a specified price, and then refusing to show the advertised item to consumers or refusing to take orders for the product or to deliver it within a reasonable time, or demonstrating a defective sample, with the intention of promoting a different product (Art. 7.6)
• Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the direct costs of responding to the commercial practice and collecting or paying for delivery of the item (Art. 7.20)

3.2.3. 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 Citroën case). Other price components = integral parts of the final price (para. 23)

SECTION D SRO SERVICES

Związek Stowarzyszeń Rada Reklamy, known as Rada Reklamy, translated as the Advertising Council, is the Self-Regulatory Organisation in Poland, founded in 2006. Rada Reklamy handles complaints from both consumers and competitors via its Complaints Jury or Advertising Standards/ Ethics Committee (Komisja Etyki Reklamy). Further information is available via its website http://www.radareklamy.pl/

Rada Reklamy offers copy advice, usually within three working days. This service is provided free of charge for members for 5 opinions annually then charges of PLN 1,000 and 1,500 net for standard and express respectively, while non-members pay a standard opinion within 5 business days PLN 2,500 net; express opinion within 48 hours PLN 4,500 net. Rada Reklamy does not pre-clear advertising.

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

SECTION E SOURCES/ LINKS

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 May 25 2018.

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

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.

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.htm.


​Five more recent, significant documents:

• Guidelines 03/2022 on deceptive design patterns in social media platform interfaces: how to recognise and avoid them
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
• Guidelines on consent under Regulation 2016/679 (May 2020)

• Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019

• Guidelines 8/2020 on the targeting of social media users adopted April 2021

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’). This document is the definitive guidance across a number of commercial practices/ claim areas covered by the UCPD.

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://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN

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 e-Privacy 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

The Digital Services Act

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

The Digital Markets Act

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here.  Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925

Unfair competition (B2B primarily)

Act on Combating Unfair Competition (Ustawa o zwalczaniu nieuczciwej konkurencji) of 16 April 1993. ‘Unfair Competition Act’. The Act is based on a general clause in Article 3 (1), according to which an act of unfair competition means any act contrary to the law or good practice, which impairs or infringes the interests of another trader or of the customers. The general clause is followed by prohibitions on acts of unfair competition, e.g. false or misleading designation of an undertaking or products (Articles 5–10), unfair advertising (Article 16). This Act incorporated the Misleading and Comparative Advertising Directive 2006/114/EC MACAD:

https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu19930470211 (PO)

https://www.g-regs.com/downloads/POActCombatingUnfairComp1993EN.pdf (EN)

Translation note here.