Updates since Jan 2022
IAB TCF Framework and GDPR. Feb 2022
Commission guidance reduced prices
Financial Penalties Upon Influencers July 2022
UOKIK Tool for tagging ads; Oct 2022
Bird&Bird LLP/ Lex November 2, 2022
Wardyński & Partners/ Lex November 3, 2022
EU green claims regulation December 2022
Above from Taylor Wessing December 2022
Above from NYT Jan 2023
EASA update on below October 18, 2023
Proposal for a Directive on Green Claims. March 22, 2023
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
Above EN from UOKIK 28 August, 2023
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
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.
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.
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.
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.
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.
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 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.
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.
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.
1.1. Basic principles of advertising
1.4. Direct marketing
SPECIFIC CLAIM AREAS
3.1.1. Self-regulation (national)
3.1.2. International self-regulation
3.1.3. Horizontal legislation and guidance
3.2.1. Self-regulation (RR Code of Ethics)
3.2.2. Applicable legislation
3.2.3. Key points from Citroën/ ZLW case
1.1. Basic principles of advertising
11. Comparative advertising
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
2.1. 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
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:
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
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
3.1.1. Self-regulation (national)
Rada Reklamy Code of Ethics in Advertising: Chapter V - Advertising containing ecological information
3.1.2. International self-regulation
3.1.3. Horizontal legislation and guidance
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):
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers
From the Rada Reklamy Code of Ethics in Advertising
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
Other UCPA prohibitions that apply to marcoms that include prices
3.2.3. Key points from C‑476/14 Citroën/ ZLW case
Radio and Television art. 17a Broadcasting Act; all applicable to VOD except Article 17a (4) BA
TV and Radio: Art. 17 Broadcasting Act (BA); National Broadcasting Council Regulations concerning sponsorship of programmes and other broadcasts; all provisions applicable to VOD, except Article 17 (paras 3 and 6) BA
Rada Reklamy Code of Ethics in Advertising EN includes Chapter VI on Sponsorship, incorporating reference to TV and Radio broadcasting:
All of the content rules set out in our earlier section B apply in these channels, except those specific to broadcast media; the principal code is the Rada Reklamy Code of Ethics in Advertising and the key legislation is the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends)
Forms of publication
vis. native/ advertorials
SAWA is the Global Cinema Advertising Association, the global trade body of Cinema Advertising Companies and Associated Companies that supply services to the Cinema Advertising Industry. Multikino (owned by Vue Entertainment Ltd) is the SAWA member in Poland; Multikino Media will handle cinema advertising sales nationwide.
Cinema City is the largest cinema operator in Poland (40% of multiplex market) followed by Multikino and Helios Cinemas; New Age Media, a subsidiary of Cinema City, provide and implement advertising campaigns of all Cinema City multiplexes
This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising Definition The Rada Reklamy definition is ‘aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' important, especially as there is so much content in a ‘blurred’ online environment .
In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant articles from law are referenced. The impact of GDPR is shown under individual channel sections; in broad, when processing personal data related to e.g. databases for marketing purposes, rules from the GDPR now apply in all member states. Privacy issues should be reviewed with specialist advisors
UOKIK Recommendations Influencer Advertising (EN) announced 26/9/22
Forthcoming changes regarding online advertising
Traple Konarski Podrecki & Partners/ Lex June 7, 2023
Sect. 38 SMB Code of Ethics: Commercial communication (Chapter VI E-Commerce)
Labelling requirement and Information obligations from the Act on the Provision of Services by Electronic Means:
Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023 NYT
Google says cookie here to stay until 2024. July 27, 2022
Privacy Sandbox next steps. May 18, 2023
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
William Fry/ Lex September 8, 2023. Connects with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023 NYT
The above reported case could have very significant implications for targeted advertising
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
Effective 19 January 2022
B2C: Opt-in regime
The sender must provide the recipient with (Art. 5.2 PSEM):
The sender must also clearly identify (Art. 9.1 & 9.2(1-3) PSEM)
B2B: Provisions from PSEM above on direct marketing by e-mail are not applicable to corporate subscribers. Article 10 only applies to 'natural persons'. Opt-in applies for email addresses which clearly identify an individual (e.g. firstname.lastname@example.org). However, for generic email addresses (email@example.com), opt-out principle will apply (source: FEDMA)
The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable RR Code of Ethics in Advertising (EN) as a ‘message …. which aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below. Issues arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors.
A significant issue in online’s less structured environment is the identification of advertising, especially in the context of Influencer marketing hence in this case extracting recognisability rules as well as the core misleadingness provision
Sect. 37.1 SMB Code: Commercial Communication:
Obligations for service providers who provide services by electronic means:
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue for this technique, obviously, is that of advertising identifiability. Native advertising, like any other advertising, is also subject to the rules set out in our content section B
FOLLOWING FEEDBACK, WE NO LONGER COVER TELEMARKETING
Consumer protection before mail is sent is from two main sources: 1) the rules on the processing of personal data (i.e. data that can identify an individual) in order to send marketing communications, and 2) the ‘Robinson list’ or equivalent, i.e. an opt-out list of people who do not wish to receive marcoms; see below. Privacy issues should be reviewed with specialist advisors
Permanent promotions mislead consumers, says Poland's consumer protection watchdog
Osborne Clarke/ Lex. April 4, 2023
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal. As promotional advertising might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors
Rada Reklamy Code Chapter VIII: Sales Promotions
Section 14 Promotion and Advertising, in context of mail order and catalogue selling
Aggressive commercial practices which are unfair in all circumstances:
Misleading commercial practices which are unfair in all circumstances:
The Gambling Act of 19 November 2009 PO: relevant to a prize draw (promotional lottery) where participation in the promotion is conditional on the purchase of goods, services or another game ticket. Note: If the purchasing of goods, services or another game ticket is optional (i.e. participation in the promotion is not conditional on the purchase of goods, services or another game ticket), the game should be generally treated as a prize promotion, not as a lottery. Scope: The Gambling Act applies to gambling games (gry hazardowe) which includes 3 main categories (games of chance, betting, slot machines). Promotional lotteries come under the games of chance category
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 firstname.lastname@example.org
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.
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:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
Five more recent, significant documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
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:
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.
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.
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.
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:
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:
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).
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.
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
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
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):
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
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
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.
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.
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.
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:
Translation note here.
Unfair commercial practices
The Law on Counteracting Unfair Commercial Practices (Ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) of 23 August 2007. ‘Unfair Commercial Practices Act’. This Act, which implemented Directive 2005/29/EC, deals with B2C unfairness. It is based on a general clause, which in Article 4.1 prohibits unfair commercial practices that are contrary to good customs/ practice (dobrymi obyczajami) and which materially distort or are likely to materially distort the economic behaviour of the average consumer before, during or after a transaction. This general clause is followed by specific provisions on misleading actions and omissions - Articles 5 and 6 - and aggressive practices (Article 8). Article 7 prohibits 23 misleading market practices that are unfair in all circumstances. Article 9 blacklists eight aggressive market practices. The information obligations under Art. 6.4 UCPA when a price is mentioned in advertising/ the advertising constitutes an ‘invitation to purchase’, are also relevant. The Law on Counteracting Unfair Commercial 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. There's a helpful December 2022 piece from Taylor Wessing on the implementation in English and Polish here. Consolidated text pdf:
Unofficial EN translation inc. 2022 amends http://www.g-regs.com/downloads/POUCPAkeylauses2022ENb.pdf
UOKIK, the Office of Competition and Consumer Protection. From their website: 'The President of the Office of Competition and Consumer Protection is a central authority of the state administration. They report directly to the Prime Minister, who appoints them from amongst the persons selected by way of an open and competitive contest. The President of the Office is responsible for shaping the antitrust policy and consumer protection policy.' In September 2022, UOKIK announced new 'Recommendations pertaining to the tagging of advertising content by Influencers on social media.' General website/ about us in English:
Influencer Recommendations September 2022:
Broadcast / AV
Broadcasting Act of 29 December 1992 (Ustawa z dnia 29 grudnia 1992 r. o radiofonii i telewizji) (Journal of Laws 1993, no 7, item 34). Entry into force 01/03/1993. This Broadcasting Act, as amended, implemented the provisions of the Audio Visual Media Services Directive 2010/13/EU. The most recent amendment added provisions concerning on-demand services, marking the final step in the transposition of the AVMS Directive. The Act regulates the whole broadcasting sector in Poland and includes regulations on public service broadcasting and commercial broadcasting. It regulates commercial communications (in particular advertising, sponsorship, teleshopping and product placement, as per Art. 4 (16) Broadcasting Act) on TV, Radio, and VOD. The Regulatory authority is the National Broadcasting Council KRRiT (see below):
GRS translation of key provisions pre amends below:
Amend to the Broadcasting Act of 11th August 2021 transposing Directive 2018/1808. This Directive essentially extends AVMSD scope online and to video-sharing platforms especially. The commercial content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on self-regulatory systems; key changes to content rules in the Directive are shown here - see article 4a and 9 for references to self-regulation in food and in alcohol. Chapter 6b of the national act covers video-sharing platforms. Helpful summary: New regulations on video-sharing platforms and other media service providers from Hogan Lovells. The Act entered into force November 1, 2021, with the exception of Art. 1 points 10, 31, point 32 in the scope of article 47g and point 33 lit. b, article 2 and article 4, which entered into force on 1 January 2022.
National Broadcasting Council (Krajowa Rada Radiofonii I Telewizji KRRiT). KRRiT regulates the content of public and commercial broadcasting related to protection of minors, harmful content, advertising restrictions, etc.
Regulation of the National Broadcasting Council of 30 June 2011 on principles of advertising and teleshopping in radio and television programme services (ref. art. 16 (7) Broadcasting Act):
Regulation of the National Broadcasting Council of 30 June 2011 on conditions of product placement (ref. Art. 17(9) Broadcasting Act):
Regulation of the National Broadcasting Council of 27 July 2011 amending the Regulation concerning sponsorship of programmes and other broadcasts (ref. art 17(8) Broadcasting Act):
Telecommunications Act 16 July 2004 (as amended) (OJ 2004 No. 171, item. 1800) Entry into force 03/09/2004. This Act specifies conditions for the protection of services users, in particular with regard to privacy and confidentiality and conditions for data processing. The act implemented the ‘Telecommunications Package’, which includes the E-Privacy Directive 2002/58/EC. Cookies are regulated within this Act (Art. 173); an amendment in 2012 implemented the provisions of the Cookie Directive Article 2 (5) 2009/136/EC. Article 172 allows telephone, fax and automated calling systems to be used for the purposes of direct marketing only after obtaining the end user’s prior consent:
Unofficial English translation:
UODO Urzędu Ochrony Danych Osobowych, Office for the Protection of Personal data:
Office of Electronic Communications. Non-compliance with the rules on storing and accessing cookies, as well failing to obtain consent prior to carrying out direct marketing by telephone, fax or automated calling systems may result in a fine imposed by the President of UKE for anyone who does not fulfil the obligations to obtain consent as laid out in Articles 172-174 of the Telecommunications Act (Art 209 (1) (25 TA:
The Personal Data Protection Act (DPA) of 10 May 2018. The purpose of this Act is to ensure the application of the Regulation 2016/679 (GDPR) 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. The Act also implements the Directive (EU) 2016/680 and establishes the Office for the Protection of Personal Data. See entry under Regulatory authorities earlier in this section. The DPA In Polish:
Act of 18th July 2002 on the Provision of Services by Electronic Means. Law Gazette/ Dz. U of 9th Sept 2002, No. 144, item 1204. Came into force 10/03/2003 (Ustawa z dnia 18 lipca 2002 r. o świadczeniu usług drogą elektroniczną). This Act is the principal legal influence in the field of business operation via the Internet, setting out the obligations of a service provider in relation to the provision of electronic services (Chapter 2; Articles 5-11). It implements elements of the e-Commerce 2000/31/EC and e-Privacy 2002/58/EC Directives, and establishes an opt-in regime for marketing by electronic media, including email and SMS, with no provision for soft-opt in:
Non-binding unofficial GRS translation of key provisions:
The Law of 9th May 2014 on Information on Prices of Goods and Services; this is the legislation that transposed the Product Price Directive 98/6/EC, which was amended by the Omnibus Directive 2019/2161 to introduce new promotional pricing rules. Transposition effective January 1, 2023 happened via the Act of December 1, 2022 amending the Act on consumer rights and certain other acts. Article 4 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;
Advertising Code of Ethics (Kodeks Etyki Reklamy) June 25th, 2019; Rada Reklamy. The Code of Ethics in Advertising is based on the ICC Advertising and Marketing Communications Code and applies to all forms of marcoms, except social and political advertising. The code includes rules on environmental claims in advertising, and covers the direct marketing, sales promotions and sponsorship channels. In September 2019 the Children’s Protection Charter was established and is set out under appendix 3 of the code. Rada Reklamy handles complaints from consumers, competitors and other interested parties via its Advertising Ethics Committee Komisja Etyki Reklamy (KER). All adjudications are published on their website. Polish:
Rada Reklamy English translation:
Also known as the Telephone Preference Service or Mailing Preference Service (MPS); maintained by Polskie Stowarzyszenie Marketing SMB, the Polish Direct Marketing Association. Those who not want to receive marcoms by voice phone, SMS, email and postal mail can register their contact details on the database and will not receive unsolicited marcoms from SMB member companies; compliance with Robinson List rules is a condition of membership (s.1(2) SMB Code). Robinson List website:
Regulations for consumers:
Mobile operators Polska Telefonia Cyfrowa, Polkomtel, Orange and P4 in conjunction with IAB Poland publish good practices for mobile marketing. Mobile advertising is via Push ads (SMS/ MMS/ wap-push) and Pull ads – where the ad is displayed after a specific action by the user – e.g. entrance to a WAP site, sending SMS notifications
IAB Poland/ Europe
Interactive Advertising Bureau Poland: Polish industry organisation that ‘unites and represents entities of the interactive industry. IAB Poland members include more than 200 companies, including the biggest web portals, global media groups, interactive agencies, media houses and technology providers.’
IAB Poland publish the Guide to Influencer Marketing and Collection of Good Practices
How to comply with EU rules applicable to online native advertising
IAB Europe Transparency and Consent Framework:
ICC Advertising and Marketing Communications Code 2018:
Environmental claims (Chapter D of the above)
The ICC Framework for Responsible Environmental Marketing Communications 2021 includes an Environmental Claims checklist under Appendix I and updated guidance on the use of environmental claims often appearing in marketing communications:
The ICC’s Guidance on Native Advertising Is here:
The European Advertising Standards Alliance is a non-profit based in Brussels; EASA brings together national advertising Self-Regulatory Organisations (SROs, such as Rada Reklamy) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
EASA’s Best Practice Recommendations
Influencer Marketing (2023)
World Federation of Advertisers
From their website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':
This is their ‘GDPR Guide for Marketers’:
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:
The European Sponsorship Association can be found at: