SECTION C: TV & RADIO/ AV

KEY RULES 

• Content rules set out in Section B apply in these channels, except that requirements for FC&CO2 data apply to print marcoms only

• In particular, while not car-specific rules per se, in these channels (audiovisual media services, which include VOD and broadcast TV and radio) LD 208/2021 (IT) carries some rules from the AVMS Directive that relate to Car advertising, even if only indirectly: article 43 (1) requires that audiovisual commercial communications must not encourage behaviour prejudicial to health or safety or grossly prejudicial to the protection of the environment

• The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found beneath the Sector rules in Content Section B; the principal sources are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• The Channel (i.e. placement, versus content) rules that apply to all sectors, Cars included, should also be observed. These are shown under the General tab below and include, for example, sponsorship and product placement rules 
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer

SECTION C: TV & RADIO/ AV

APPLICABLE REGULATION 

• Rules from the IAP Code (EN) and legislation in our earlier content section B apply to all media; audiovisual media services carry some specific content rules of their own, derived from the AVMS Directive and its amending directive 2018/1808 and transposed by LD 208/2021 (IT)
• Those rules, assembled from the directive here, or see the link above, apply beyond TV and Radio broadcast programmes into VOD and other online services, most recently, as a function of the 2018 Directive, into video-sharing platforms in particular
• The decree linked above also addresses 'channel' (i.e. placement) rules such as those for product placement and sponsorship as well as 'conventional' break TV advertising; see Chapter III, articles 46 and 48 for sponsorship and product placement respectively 
• The self-regulatory Code on Media and Minors applies to TV and is undersigned by all Italian broadcasters; Section 4 (EN) covers advertising. The code applies different levels of protection for minors according to the timeframe. The full code is here (IT)

AV CONTENT RULES

Chapter III, LD 208/2021, art. 43

Extracts of the more general clauses. There are also clauses related to alcohol and to gambling

General principles: audiovisual commercial communications must be readily recognisable as such; surreptitious audiovisual commercial communications are prohibited. And must not: 

• Use subliminal techniques 
• Prejudice respect for human dignity 
• Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
• Encourage behaviour prejudicial to health or safety 
• Encourage behaviour grossly prejudicial to the protection of the environment 
• Cause physical or moral detriment to minors; they must not:

• Exhort minors to buy or hire a product or service by exploiting their inexperience or credulity
• Encourage them to persuade their parents or others to purchase the goods or services being advertised
• Exploit the special trust minors place in parents, teachers or other persons
• Unreasonably show minors in dangerous situations 

SPONSORSHIP
(Art. 46 of the LD)

• The content and scheduling of a sponsored programme must not be influenced by the sponsor so as to affect the responsibility and editorial independence of the media service provider

• Sponsored programmes must be clearly identified as such and the name or logo of the sponsor indicated at the beginning and end of the programme
• They must not encourage the purchase or rental of the goods or services of the sponsor or of a third party, in particular by making special promotional references to those products or services 
• Television and radio news programmes and political affairs programmes must not be sponsored
• The showing of a sponsorship logo during children’s programmes, documentaries and religious programmes is prohibited 

SECTION C TV/AV AND RADIO

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
• The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

Article B12: Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

​

SECTION C: CINEMA, PRINT, OUTDOOR

• The Content rules in Section B above apply to the Cinema channel, except those shown under 1.1. for AVMS, and requirements for FC&CO2 data apply to print marcoms only; some manufacturers may observe the rules in Cinema
• The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed; the principal sources are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer
• The channel (i.e. placement) rules that apply to all sectors, Cars included, are shown under the General tab below

• The Content rules in Section B above apply to the Print channel, except those shown under 1.1. for AVMS
• The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. the principal sources are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer

Fuel Consumption & CO2 Emissions Presidential Decree 84/2003 (EN) DPR 84/2003
All published promotional literature (i.e. printed marcoms including technical manuals, brochures, advertisements in newspapers and magazines, trade press) must contain the official values relating to the official fuel consumption and official specific CO2 emissions of the passenger car models to which it refers. This information must comply with the following minimum requirements (Art. 6 (1) & Annex IV, DPR 84/2003):

• It must be easy to read and with the same prominence as the main information provided in the promotional literature
• It must be easy to understand, even with a superficial reading
• The official fuel consumption figures for all models presented must be shown. If several models are specified, then either the fuel consumption values for each model must be indicated OR the range of the model with the highest and the model with the lowest consumption value must be stated; example ad here
• Fuel consumption must be expressed in one or more of the following ratios: litres per 100 kilometres (l/100 km) and kilometres per litre (km/l). All numerical values must be quoted to one decimal place
• If the promotional literature contains only a reference to the car brand or make and not to a specific version or model, it is not necessary to provide fuel consumption data. Note: general practice is that this exemption should also include CO2 emissions

Per print above

SECTION C: CINEMA, PRINT, OUTDOOR

CINEMA

• The content rules set out in our earlier section B from the IAP Code (EN) and from legislation apply in all media, except those rules from the AVMS Code
• Rai Pubblicità is the SAWA (Screen Advertising World Association) representative in Italy. Contact them for any further information on cinema advertising in Italy:
  http://www.raipubblicita.it/

PRINT

• The content rules set out in our earlier section B from the IAP Code and from legislation apply in all media, with the exception of rules from LD 2018/1808, which apply to audiovisual media services 

OUTDOOR

• The content rules set out in our earlier section B from the IAP Code and from legislation apply in all media, with the exception of those rules set out in the AVMS Code

• The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here
• Use of billboards to 'dress' buildings which are in the process of being restored: companies are sponsoring the restoration of Italian historical monuments and therefore provide advertising banners to cover scaffolding etc. over the building. See Art. 49.3 Law on Cultural Heritage and Landscape. Under article 49.1, it is forbidden to place or post signs or other means of advertising on buildings and in protected areas as cultural assets. Restrictions are contained in:

• Law on cultural heritage and landscape Art. 49 LD 42/2004 IT
• Italian Traffic/ Highway Code (Codice della Strada) LD 285/92 IT Art. 23 Advertising on roads and vehicles
• Regulations for the implementation and execution of the Highway Code articles 47-49 refers to Art. 23 of Highway Code (DPR 495/92 IT)
• Regulations from municipalities will also apply

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable self-regulation and legislation 

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
• The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
• In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)

Refer to Content Section B for provisions; of particular relevance below:

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

Annex I of the UCPD 

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

Article B12 Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

• This section provides the broad picture for the commercial digital environment. More specific channel rules follow. As space online can be advertiser-owned, what constitutes advertising/ marketing communications in that context especially is important
• The IAP Code of Marketing Communication (EN) states 'marketing communication shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used.’
• So non paid-for channels in Italy, such as marketers’ own websites and SNS spaces, are covered by the rules. Specifics are included later in this section and in the link above, but the principle applied in paid space also applies in unpaid or owned space: if it’s a marketing communication, it’s covered

• The content rules for cars in section B above apply to marketing communications in all media, including online, except those rules for FC&CO2 data
• The rules set out in LD 208/2021 (IT), transposing the AVMS Directive and its amending Directive 2018/1808, extend online into audiovisual media services platforms - note on the directive's scope here - and in particular to video-sharing platforms. More below, as the rules apply to all sectors cars included, but there are car-related requirements for safety and for environmental rules under article 43 (1) of the Decree 
• Vloggers/ Influencers can constitute an 'audiovisual media service'; definitive view from the regulator group ERGA here 
• The content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found beneath the Sector rules in content section B; the principal sources are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• The general channel rules, i.e. those placement rules that apply to all product categories, cars included, are shown below under the General tab. Importantly, these include statutory consent and information requirements in some channels 
• Another significant regulatory influence online is the IAP Digital Chart (EN; scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’), which provides rules on recognisability/ disclosure in several channels, consistent with article 7 of the IAP Code of Marketing Communication linked above
• See ‘Marketer’s Own Websites’ for specifics, but we do not cover in depth the kind of ‘virtual showrooms’ that manufacturers will deploy in this sector, though marketing communications in that context will generally be in remit
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Q&A: online advertising in Italy. ICT September 29, 2023

CONTEXT AND SCOPE  

This particular 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 important. The IAP version is ‘advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used’. This August 2021 'Q&A: online advertising in Italy' from ICT Legal Consulting/ Lex incorporates some definitions and is a good round-up of the issues; updated October 2022

GDPR 

In the context of these channels, the influence of legislation is significant, particularly on the use of personal data. GDPR’s impact is shown under particular channel sections where relevant; in broad, if processing personal data, lawful processing rules from the GDPR now apply. For guidance, we show below the most relevant Data Protection Authority - Garante - statements, together with EU documentation

Privacy issues should be reviewed with specialist advisors

1. SELF- REGULATION 

• IAP Code EN / IT for content rules 
• IAP Digital Chart IT / EN establishes criteria for the recognition of common forms of online marketing communications
• Marketing communications online are generally subject to the rules set out in our earlier content section B, with the exception of rules specific to broadcast advertising

2. LEGISLATION

• Data Protection Code (DPC) Legislative Decree No. 196 of 30 June 2003 IT; section 130 unsolicited commercial communications EN (text released 22.12.2021)
• In the context of e-Commerce/ an Information Society Service Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of servicesLegislative Decree 70/2003 e-Commerce law EN Information requirements articles 7, 8 & 9
• Consumer Code (CC) LD 206/2005 (EN inc. 2023 amends) applies to business-to-consumer commercial practices, as defined under article 18. The decree carries the rules from the UCPD 2005/29/EC and covers content-related issues such as misleading acts and omissions, including e.g. 'invitation  to purchase' (art. 22). Sanctions and distance selling rules, the latter particularly applicable to this channel, have been extracted and are shown here (EN)
• LD 208/2021 (IT) is the vehicle for the AVMS Directive as amended by Directive 2018/1808 which applies to 'audiovisual media services' and brings into scope video-sharing platforms (VSPS) in particular. Some scope explanation here, or see the linked directive
• The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024

GUIDANCE 

The Italian Data Protection Authority Garante per la protezione dei dati personali is the independent authority established by the Personal Data Protection Code as responsible for monitoring application of the GDPR

• Garante Guidelines relating to promotional activity and the fight against spam, July 4 2013 Doc. No. 2542348 IT Garante trans EN Doc. No. 4304228
• Summary of these guidelines is also provided by Garante in “No to Spam, yes to consumer friendly marketing” 23/07/2013. Doc. 2554512 in English; Doc 2549317 in Italian
• Note: both of the above documents remain on the Garante website as at December 2021; the documents pre-date GDPR
• Guarantor guidelines various; this link takes you to the guidelines home page (IT)
• Guidelines on the processing of personal data for online profiling; March 2015 (IT)
• Guide to the application of the European Regulation on personal data protection February 2018 (IT)

Article 29 Working Party/ EDPB

Established by Article 29 of Directive 95/46/EC, hence the name. As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB).  Nevertheless, WP29 papers/ guidelines remain valid. The 1997-2016 archive is here. Three key papers in this context are: 

• Article 29 Working Party Guidelines on consent under Regulation 2016/679 (May 2020)
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
• Guidelines 8/2020 on the targeting of social media users (April 2021)

• Reference LD 208/2121 above and its 'parent' Directive 2018/1808, there has been some discussion in regulatory circles whether a vlogger/ influencer constitutes an audiovisual media service. The definitive view and recommendation is in the 2021 ERGA paper Analysis and recommendations concerning the regulation of vloggers

1.1. Key clauses self-regulation

Ad labelling/ Identification

• IAP Code Article 7 (Identification): Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures
• Digital Chart IT / EN covering Endorsements (e.g. Celebrity/ Influencer/  Blogging, Vlogging) UGC, SNS; In-App; Advergame. This is the key document in this marcoms area. Scroll down in the IAP Digital Chart link to the sub-head that reads 'Digital Chart Regulations on the Recognisability of Marketing Communications Distributed over the Internet'. 

​

Endorsements/ Influencers (extract from Section 2 IAP Digital Chart)

• When a celebrity, influencer, blogger, or similar user of the Internet, whose actions might potentially influence the commercial choices of the public (hereinafter, collectively, “influencers”) accredits a product or a brand within their own content, as a form of marketing communication, one of the following labels must be clearly inserted at the beginning of the post, or in another message posted online:

“Pubblicità/Advertising”, or

“Promosso da … brand/Promoted by … brand” or

“Sponsorizzato da … brand/Sponsored by … brand”, or

“in collaborazione con … brand/In partnership with … brand”;

• And/ or within the first three hashtags of a post, provided it is clear and prominent, one of the following labels should be inserted:

• For contents available for “a limited time”, for instance the stories, one of the above labels should be superimposed in a clear and legible manner for any promotional content
• Conversely, should the relationship between the influencer and advertiser not be underpinned by an existing agreement, but consist merely in the advertiser occasionally sending the influencer its products free of charge or for a modest consideration, rather than the notifications stated above, posts or other messages distributed online in which the influencer mentions or represents these products must feature a disclaimer of the following type:

• “Product sent by… brand”, or equivalent
• As per the previous subsection, the advertiser must clearly and unequivocally inform the influencer when sending the product of the obligation to insert this disclaimer
• In such cases, the advertiser’s liability is circumscribed to informing the influencer of the obligation’s existence

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Meta and self-regulation December 2023 

This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels, online included
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth platforms online; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (linked above): Direct Marketing and Digital Marketing Communications; extracts below under 'self-regulatory clauses'
• ICC Guide for Responsible Mobile Marketing Communications
• EASA Best Practice Recommendation on Digital Marketing Communications 2023
• EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

• Directive 2002/58/EC on privacy and electronic communications

• Directive 2000/31/EC on electronic commerce

• Regulation 2016/679/EU on the processing of personal data (GDPR) 

• Directive 2018/1808 amending AVMS Directive 2010/13/EU 

Also be aware of:

The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation

The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market

The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)

Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth

And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 

Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts) 

C1. Identification and transparency

• Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
• Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
• Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
• Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

C2. Identity of the marketer

• The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
• At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer

SECTION C: COOKIES AND OBA

• There are no Car-specific cookie rules; see Cookie and OBA rules for all sectors, Cars included, under the General tab below. Rules include statutory Consent and Information requirements 
• The Car sector does not attract rules that are particular to OBA/ Cars but OBA, like any other Car advertising, is subject to the rules for Safety, the Environment, and Credit set out in the Content Section B, as well as the 'General' Content rules that apply to all sectors 
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer
• FC&CO2 data requirements do not apply online in this OBA context

​

SECTION C: COOKIES AND OBA

COOKIES
Privacy Sandbox next steps. May 18, 2023
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 

Privacy issues should be reviewed with specialist advisors

Legislation and guidance 

• Section 122 Data Protection Code DPC EN implementing the Cookie Directive 2009/136/EC;
• The introduction of the GDPR 2016/679 may mean that if/ when cookies identify individuals, GDPR lawful processing rules apply;
• The key EDPB guidance in this context is Guidelines on Consent under Regulation 2016/679 (May 2020);
• IAB Europe published also in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising;
• From ICAS' March 2022 newsletter: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here;
• IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN);  
• Garante/ GPDP published in July 2021 Guidelines for cookies and other tracking tools (IT) English version here. Compliance by January 10, 2022;
• There's a helpful commentary in English on the above from Martini Manna/ Lexo here; 
• See this significant piece from August 2022 The Garante warns against personalised ads based on legitimate interest by Orsingher Ortu Avvocati Associati/ Lex;
• And this Feb 2023 piece from CMS Italy/ Lex is a helpful catch-up with the EDPB cookie banner task force findings and potential implications in Italy;

• Important Garante case GALA October 6, 2023 re permissible period for data retention indicates new stance from regulator.

Key clause

• Under Article 122 (1) of the DPC linked above: the use of cookies is only permitted if the ‘contracting party’ (user) has been properly informed and has given his/ her consent, unless the cookie is strictly necessary to provide the service explicitly requested by the users i.e. technical, session, analytics, functional; these cookies must still be disclosed in the privacy notice. See the linked DPC above for the full clause

OBA

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising

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. From the NYT Jan 2023

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

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

Effective 19 January 2022

Profiling/ Behavioural cookies

• Prior consent of the data subject is required along with disclosure in an information/ privacy notice, i.e. opt-in consent; see Google case
• Under Doc. 3118884 (IT), separate consent must be obtained for third party cookies/ profiling. The third party cookie information must also be kept separate from the website owner’s first party cookie information (to prevent confusion)
• In order to maintain the distinction of the responsibility of website managers and third parties, the website operators should provide links to the web pages which contain the information and third-party cookie consent. Refer to foot of Cookie Guidance document 3118884
• Garante confirms that profiling cookies that are ‘persistent in nature’ should be notified (to Garante) - Sect. 5 Guidelines as per Art. 37 (g) DPC
• Profiling and Electronic Communications (EN). Decision by Garante dated 25 June 2009. Profiling performed on identifiable personal data is only allowed if – under Section 23 of the Code* – the data controller can provide written proof that the data subject had given his/ her informed, free, and specific consent thereto. The consent in question obviously also applies to the processing of aggregate personal data. * Note: GDPR lawful processing rules may now apply; see below
• From Article 29 WP (now the European Data Protection Board):
  Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 
• Garante guidelines on the processing of personal data for online profiling; March 2015 (IT)

SECTION C: COOKIES AND OBA

Reject All” button in cookie consent banners - An update from the UK and the EU

Reed Smith LLP/ Lex November 8, 2023

Cookies banners and beyond: how to avoid common mistakes
EU, USA, November 3, 2023. Bryan Cave Leighton Paisner 

Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*

Covers interplay between the AI act, the DSA and GDPR 

GDPR Jargon Buster: Cookies. Stevens & Bolton LLP October 9, 2023

Files prior to the above date here 

Applicable legislation, self-regulation and guidance 

Note that legislation is implemented in member states, sometimes with nuance 

• E-Privacy Directive 2002/58/EC, as amended by the ‘Cookie Directive’ 2009/136/EC
• The introduction of the GDPR 2016/679 from May 25, 2018 

• European Commission Data Protection website:
  https://ec.europa.eu/info/law/law-topic/data-protection_en

• IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era

• And in July 2021 the Guide to Contextual Advertising

• February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here

As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC

• Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• The Car sector does not attract rules that are particular to (direct) electronic communications but, like any other Car advertising, it’s subject to the rules for Safety, the Environment, and Credit set out in the Content Section B
• The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found beneath the Sector rules in Content Section B;  the principal sources are the IAP Code of Marketing Communication (EN) and, in law, the the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• The General channel rules, i.e. those that apply to all product categories, Cars included, are shown below under the General tab. These include statutory Consent and Information requirements in most forms of direct (commercial) electronic communications 
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer
• FC&CO2 data requirements do not apply online in this context

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

(DIRECT) ELECTRONIC COMMUNICATIONS INC SMS/MMS

• Marketing communications via email/ SMS/ MMS are subject to the content rules set out in section B, except those that are specific to broadcast; the principal content rules are from the IAP Code (EN)
• In legislation, the core content regulations are from the Consumer Code LD 206/2005 EN, which covers misleading and aggressive commercial practices, including advertising (see below)
• If associated data processing involves personal data (that which identifies individuals), lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
• In this Channel rules context, the main regulatory issues are from legislation that deals with Consent, Identification and Information requirements. Details below

LEGISLATION MOST RELEVANT TO THIS CHANNEL 

• The General Data Protection Regulation 2016/679 applied directly in EU member states from 25 May 2018
• Nationally, the Personal Data Protection Code (DPC) article 130 EN; the DPC was amended in August 2018 to ‘recognise’ GDPR
• e-Commerce Law LD 70/2003; information requirements articles 7, 8 and 9 EN
• Consumer Code (CC, EN) LD 206/2005 applicable to ‘business-to-consumer commercial practices’ i.e. ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (Section 18d CC). The Consumer Code has a broad remit, therefore. In this context, most relevant clauses Section 26 (e.g. harassment clause shown below at the base of this section) and sections 22 and 23 re misleadingness 
• Sanctions and distance selling rules from the CC have been extracted and are shown here (EN)
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

GARANTE GUIDANCE 

• Garante guidelines relating to promotional activity and the fight against spam, July 4 2013 Doc. No. 2542348 IT, Garante EN Doc. No. 4304228
• Summary of above guidelines: ‘No to Spam, yes to consumer friendly marketing’ 23/07/2013 Doc. No. 2554512 EN; Doc. No. 2549317 IT
• Resolution on consent in the use of personal data for 'direct marketing' purposes, by conventional and automated means May 15, 2013; DPA Decision 2543820 EN / IT 
• How to lawfully Email advertising messages (IT)
• Note: the above are relatively old documents and may not be fully consistent with GDPR lawful processing rules, but remain on the Garante website as at December 2021
• Garante guidelines various; this link takes you to the guidelines home page (IT)
• See this significant piece from August 2022 The Garante warns against personalised ads based on legitimate interest by Orsingher Ortu Avvocati Associati/ Lex.

CONSENT/ EDPB GUIDANCE 

• If consent is the basis for lawful processing, the optimum source for guidance for consent under GDPR is from the Article 29 Working Party (now the European Data Protection Board)
  Guidelines on consent under Regulation 2016/679 (May 2020)
• EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)

KEY CLAUSES

Section 121 (m) of the DPC: electronic mail is defined as any text, voice, sound or image message sent over a public communications network, which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient

• Opt-in: use of email, MMS or SMS-type messages, addressed to both individuals and companies for the purposes of direct marketing or sending advertising materials, are only allowed subject to obtaining the prior consent of the consumer or business (based on Section 130 (2) DPC)
• If the marketing communication is in an e-Commerce context, i.e. relating to an Information Society Service Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services, information requirements from Articles 7, 8 and 9 of the e-Commerce Act LD 70/2003 (EN) apply
• From the above, the marcom must clearly identify the sender and must be clearly identifiable as such. The recipient must also be informed that he/ she may object to the receipt of such communications in future
• In the case of a promotional offer, with discounts, prizes or gifts, or promotional contests or games, 'conditions of access' and 'terms of participation' must be made available (Art. 8 of LD 70/2003, transposing Art. 6 of Directive 2000/31/EC)
• The service provider must make company information 'easily, directly and permanently accessible to the recipients of the service and competent authorities.' See Art. 7 LD 70/2003 for required information
• It is prohibited to send direct marketing emails which disguise or conceal the identity of the sender and do not provide a suitable address to enable the user to opt-out (Art. 130 (5) DPC)
• If the communication constitutes an ‘Invitation to Purchase' Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase certain information must be provided, especially that related to price. Article 22 of the Consumer Code LD 206/2005 (EN) applies. This is a transposition of UCPD 2005/29/EC article 7 here

SOFT OPT-IN 

• Under Section 130 (4) DPC, where a data controller collects a customer’s email details in connection with a sale of a product or service and uses these details for direct marketing of its own products and services, consent of the user is not required provided that:
   

• The products or services promoted by email are similar to those previously sold to the data subject
• The data subject was previously informed that his/ her email address would be used for marketing purposes, and does not object to said use either initially or in the course of subsequent communications
• At the time that the data was initially collected and on the occasion of each subsequent communication, the data subject must be informed of the possibility to object to the processing of his/ her data for marketing purposes, through simple means and without incurring any costs

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications
• General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
• Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
• Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
• GDPR may apply if processing personal data; check privacy issues with specialist advisors 
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:

• When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations

19.1. Collection of data and notice

• When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter

19.2. Use of data

Personal data should be:

• collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
• adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
• accurate and kept up to date
• preserved for no longer than is required for the purpose for which the data were collected or further processed

19.3. Security of processing

• Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures

19.4. Children’s personal data

• When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
• Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
• Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
• Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
• Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
• For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7

19.5. Privacy policy

Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented

19.6. Rights of the consumer

Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:

• opt out of direct marketing lists
• opt out of interest-based advertising
• sign on to general direct preference services
• require that their personal data not be made available to third parties for their marketing purposes; and
• rectify incorrect personal data which are held about them

• Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9

19.7. Cross-border transactions

• Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended

Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked code 

SECTION C: MARKETERS' OWN WEBSITES

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. The IAP Code of Marketing Communication states 'marketing communication shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used.’

• The ‘virtual showrooms’ that most manufacturers and dealers deploy in this sector are not fully addressed here, as those are more subject to trading and distance-selling regulations than they are to marcoms rules per se
• Clearly, much of any website will not be commercial communication as defined; the data under the General tab below explains more fully what is and isn't in remit 
• The same principles (of scope, i.e. whether advertisers’ own SNS are subject to the rules) apply to manufacturers’ own social media spaces. The key issues are

1. Whether communications ‘qualify’ as marketing communications, i.e. whether they are ‘in remit’; definition above in the introduction to this section
2. If so, is the content in compliance with the IAP Code of Marketing Communication and
3. Especially in the environment of social network space, is the marketing communication correctly identified as such? Key rules/ guidance in respect of this third issue are from the IAP Digital Chart; provisions below under the General tab or see the linked Code (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’)

• Per above, marketers' own marcoms on their own websites are subject to the rules set out in Content Section B for Safety, Credit, the Environment etc., as well as the 'General' Content rules that apply to all product sectors. These are shown in Content Section B beneath the Sector rules; principal sources of general rules are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• The Consumer Code can be, and is, deployed by the Italian Competition authority AGCM in the event that they take action against what they perceive to be 'greenwashing', i.e. environmental claims that may be misleading or not fully evidence-supported or both. Example case here (IT). This issue may be particularly relevant to the Car sector, albeit the rules are not car-specific
• The rules set out in LD 208/2021 (IT), transposing the AVMS Directive and its amending Directive 2018/1808, extend online into audiovisual media services platforms - note on the Directive's scope here - and in particular to video-sharing platforms. More below, as the rules apply to all sectors Cars included, but there are car-related requirements for safety and for environmental rules under article 43 (1) of the Decree 
• Vloggers/ Influencers can constitute an 'audiovisual media service'; definitive view from the regulator group ERGA here 
• Also significant from the general Channel (i.e. placement) rules below are the statutory Consent and Information requirements that apply to direct electronic communications/ e-commerce communications

• Energy data (i.e. FC&CO2) is not required in online advertising in Italy; some manufacturers may include in their advertising on third-party websites, and certainly in their own ‘virtual showrooms’
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT

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 IAP Code here Definition ‘Advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used, as well as forms of communication regulated by Title VI.’ (Charity appeals). Clearly, much content on owned websites won’t be advertising; for exemptions, e.g. UGC, see the EASA Recommendation linked below for some non-binding guidance. The IAP’s Digital Chart is also important in this context, as it explains disclosure/ recognisability requirements for various forms of website marcoms. Issues arise from the introduction of the GDPR: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors

SELF-REGULATION 

• IAP Code EN / IT Title I; in particular in this context, article 7 Identification; and Title II, article 18 Distance Selling, albeit the code applies to advertising online generally and as identified above in owned websites 
• IAP Digital Chart IT / EN covering Endorsements e.g. Celebrity/ Influencer/ Blogging, Vlogging, UGC, SNS, In-app, Advergames etc.
• EASA’s Best Practice Recommendation Digital Marketing Communications establishes some exemptions such as User-Generated Content (unless endorsed by the marketer), under Section 2 of the linked document

KEY CLAUSES SELF-REGULATION

• IAP Code Article 7 Identification: Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations 
• IAP Digital Chart: for clauses, see the earlier Online Commercial Communications header in this Section C, or the linked Code (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’). Two relevant articles extracted below:

• If a video produced and disseminated online are of a marketing communication nature, a prominent written disclosure must be inserted in the description of the video and in its opening scenes, that makes the promotional end-purpose of the video evident (by way of example: “brand presents…”, or “in partnership with… brand”)
• In a live stream these warnings, even verbal, should be repeated periodically. In particular, the public must be informed about the inclusion of an advertiser or the videomaker’s products/brands for promotional purposes through ad hoc disclaimers in the video’s opening and closing shot, or when the products/brand feature in shots
• Should on the other hand the relationship between the videomaker and advertiser not be underpinned by an existing agreement, but consist merely in the advertiser occasionally sending its products free of charge or for a modest consideration, and these products are mentioned, used or framed in the video, the videomaker must feature a written or verbal disclaimer of the following type: “this product was sent to me by…”, “product sent by…”.
• As per the previous subsection, the advertiser must clearly and unequivocally inform the influencer when sending the product of the obligation to insert this disclaimer. In such cases, the advertiser’s liability is circumscribed to informing the influencer of this obligation’s existence

• The promotional nature of an advergame must clearly be stated through the use of specific descriptors: “Promoted by … brand/ Promosso da … brand”, or “Sponsored by … brand/ Sponsorizzato da … brand”.
• These descriptors must be placed within boxes at both the beginning and end of the game

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

ICC Advertising and Marketing Communications Code (EN); Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

Directive 2005/29/EC on unfair commercial practices (UCPD)

Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)

EASA Best Practice Recommendation on Digital Marketing Communications 2015

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

SECTION C: NATIVE ADVERTISING

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 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. The ICC’s Guidance on Native Advertising is linked and also shown under the General tab below. Category-specific rules, such as they are, are immediately below

• The ‘Native’ form of advertising is like any other Car advertising or any sector’s advertising – it’s subject to the Content rules; the key general rule, spelt out under the General tab below together with the other rules that should be observed, is that of identifiability/ disclosure. In that context, the IAP Digital Chart covers Native advertising in some depth. Rules are set out below under the General tab, or see the linked document (scroll down to the header 'Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet')

• The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found beneath the Sector rules in Content Section B; principal sources are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)

• As the Car sector creates a lot of 'content' and this may well be deployed using the native technique, advertisers/ agencies should be aware that new rules stemming from the amendment of the AVMS Directive by Directive 2018/1808 bring video-sharing platforms (VSPS) in particular into scope. Two potential issues arise: first, that AVMS rules related to safety and the environment, both of which may be relevant to the Car sector, now apply to a number of online platforms including VSPS and second, that there are new commercial communication identification rules for VSPS. These are set out under article 28b of the earlier linked Directive, transposed in Italy under article 42 (sections 2 and 7) of LD 208/2021 (IT) and extracted from the Directive here

• Vloggers/ Influencers can constitute an 'audiovisual media service'; definitive view from the regulator group ERGA here 
• The rules in Content Section B for Credit (rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer), the Environment, and Safety therefore apply, with the exception of the AVMS rules which apply to broadcast only
• In print forms of native advertising, energy data is required if a car model is featured. If only a car brand and not a specific model is promoted, FC&CO2 data do not need to be provided (Annex 4, Sect. I (3) Pkw-EnVKV)

SECTION C: NATIVE ADVERTISING

CONTEXT

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.'

SELF-REGULATION

IAP Code of Marketing Communication Self-Regulation EN / IT 

IAP Digital Chart IT / EN Native: in-feed units, paid search units, recommendation widgets

• Key is article 7 IAP Code: Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations (linked above as IAP Digital Chart)
• Rules for some native forms are shown below from the IAP Digital Chart. Or see the linked document (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’)

SECTION C: NATIVE ADVERTISING

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 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. General rules, i.e. those that apply to all product sectors, are immediately below

ICC Advertising and Marketing Communications Code (EN) 2018

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Guidance: ICC Guidance on Native Advertising here

IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here

And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.' 

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

Identification and transparency (Art. 7)

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)

Unfair Commercial Practices Directive 2005/29/EC, Annex I

Commercial practices which are in all circumstances considered unfair

• 11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC

• 22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

SECTION C: DIRECT POSTAL MAIL

• The Content rules for Cars (Safety, Credit, the Environment etc.) set out in Section B, together with the rules for all sectors will apply. The AVMS rules apply to broadcast only
• The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found beneath the Sector rules in Content Section B; principal sources are the IAP Code of Marketing Communication (EN) and, in law, the the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• The General channel rules, i.e. those that apply to all product categories, Cars included, are shown below under the General tab. These include statutory Consent and Information requirements 

• Energy Data: forms of DM such as mailings of leaflets or brochures will be covered by the Content rules in Section B under Promotional Literature as per Art. 6 and Annex IV DPR 84/2003 (EN)
• It must be easy to read and of the same clarity as the main information provided in the promotional literature
• Information must be easy to understand, even with a superficial reading
• The official fuel consumption figures for all models presented in the booklet/ brochure must be shown. If several models are specified, then either the values for each model must be stated OR the data for the model with the highest and the model with the lowest values. Example ad here
• Fuel consumption must be expressed in one or more of the following ratios: litres per 100 kilometres (l/100 km) and kilometres per litre (km/l). All numerical values must be quoted to one decimal place
• CO2 emissions must be expressed in g/km as per the label and accurate to the nearest round number
• If the promotional literature contains only a reference to the make and not to a version or particular model, it is not necessary to provide data; though the legislation actually specifies only fuel consumption, it is Italian Counsel’s view that neither will it be required to include CO2 data

• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer

SECTION C: DIRECT POSTAL MAIL

REGULATIONS MOST RELEVANT TO THIS CHANNEL 

• The rules set out in content section B apply to commercial communications in Direct Postal Mail, except those specific to online and to broadcast. Principal source of rules is the IAP Code of Marketing Communication (EN)
• In legislation, the Consumer Code (EN inc. 2023 amends) is applicable to ‘business-to-consumer commercial practices’ as defined under article 18. The decree carries the rules from the UCPD 2005/29/EC and covers content-related issues such as misleading acts and omissions, including e.g. 'invitation  to purchase' (art. 22). Sanctions and distance selling rules, the latter particularly applicable to this channel, have been extracted and are shown here (EN)
• The introduction of the GDPR 2016/679 from May 2018 may impact on processing operations: if the mailing database involves the processing of personal data (i.e. data that can identify an individual), then it may be subject to GDPR lawful processing rules. Privacy issues should be reviewed with specialist advisors
• The Data Protection Code (DPC; EN), amended in August 2018 to incorporate elements of the GDPR, applies
• DPA Decision Doc. No. 1526724 (IT) extends the 'Soft Opt-in' principle established in Section130 (4) of the DPC to Direct Mail

KEY CLAUSES

• The opt-out system established in article 130 (3) for telemarketing has been extended (Decree Law 70/2011) to incorporate Direct Mail advertising. This means that when data (i.e. postal addresses) are processed from printed and electronic telephone directories for the purposes of marketing by direct mail, it will not be necessary to obtain prior consent from the user/ contracting party provided that their address is not on the opt-out register
• As with telemarketers, companies will be able to carry out marketing activities by postal mail provided they subscribe to the opt-out register and cleanse/ match their lists against the register to ensure that they do not contact those users/ contracting parties who have registered an objection
• Soft Opt-in: Definition The law allows the data controller to use the address already provided by the party concerned (company/ individual) for direct marketing of the own products or services, provided the products are similar to those previously soldDPA Decision 19/06/2008 (IT) allows the use of ‘soft spam’ in the context of direct mail as per provisions from Section 130 (4) DPC in the context of email marketing. It is permitted to send direct marketing mail if a commercial relationship already exists 
• Where a data controller collects a customer’s postal address in the context of a sale of a product or service and uses that address for direct marketing of its own products and services, consent of the user/ contracting party is not required provided that:
   

• The products or services are similar to those previously sold
• The interested party (individual/ company) has been adequately informed of the possibility not to receive further commercial communications either at the point of initial contact or via subsequent communications
   

• This same principle has been re-iterated in the Guide 'Privacy: working with business' issued on 28 May, 2013 (see 2nd column, p.14) here (IT)
• Counsel have concluded that whilst the Garante has not (expressly) excluded the extension of the soft-spam exception to postal marketing, a cautious approach would still be recommended in this regard; check with advisors

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INVITATION TO PURCHASE

Article 22 of the Consumer Code (EN)

In the case of an invitation to purchase Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase the following information shall be regarded as material, within the meaning of paragraph (1), if not already apparent from the context:

1. The main characteristics of the product, to an extent appropriate to the medium and the product
2. The geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
3. The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable by the consumer
4. The arrangements for payment, delivery, performance and the complaints handling policy, if they depart from the requirements of professional diligence
5. For products and transactions involving a right of withdrawal or cancellation, the existence of such a right

SECTION C: DIRECT POSTAL MAIL

Applicable Self-regulation and legislation 

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• National 'Robinson lists' or opt-out lists
• The General Data Protection Regulation 2016/679 for the processing of personal data
• Directive 2005/29/EC on unfair commercial practices (UCPD) 

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

SECTION C: EVENTS/ SPONSORSHIP

• There are no channel rules from authorities specifically for sponsorship of events by car brands
• Any associated promotional literature/ material that features a new car model must observe the energy data rules set out for promotional literature earlier in the content section B, as well as other rules that affect the sector (safety, credit, the environment etc.)
• The content rules that apply to all product sectors, i.e. the 'general' content rules, should also be observed. These can be found under the sector rules in content section B; principal sources are the IAP Code of Marketing Communication (EN) and, in law, tthe Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• The general channel (i.e. placement) rules below include sponsorship rules from the ICC, found under Chapter B of their Advertising and Marketing Communications Code (EN)

• Credit rules relating to standard information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer
• There are detailed requirements for communications in Car showrooms. These are largely about energy data, but there are additional stipulations in this environment
• If the material only refers to the make/ brand (sometimes the case in e.g. some forms of sponsorship) and not to any particular model, FC&CO2 data is not required

SECTION C: EVENTS/ SPONSORSHIP

Spotlight: organisation and commercialisation of sports events in Italy. Sports Generation/ Lex September 2022

First Enforcement of Law Decree No. 16/2020 on Ambush Marketing by the Italian Competition Authority against Zalando (EN)

from Portolano Cavallo/ Gala/ Mondaq May 9, 2022

More on the law here from Bird&Bird June 2020 and the law itself is here (IT)

• There is no sponsorship code per se in Italy
• Sponsorship material should observe the content rules set out in section B; principal source of rules is the IAP Code of Marketing Communication (EN)
• Some product categories, such as alcohol, will be restricted to adult audiences by general clauses on the avoidance of minors. See relevant sectors on the Wikiregs main website/ HP
• ICC Sponsorship rules are a solid ‘catch-all' for sponsorship activity nationally and internationally; see Chapter B of the ICC Advertising and Marketing Communications Code (EN); extracts below

 B1. Principles governing sponsorship

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

B2. Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement

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B3. Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

B4.  “Ambushing” of sponsored properties

• No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

SECTION C: EVENTS/ SPONSORSHIP

• Advertising material associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier Content Section B, or from the ICC Code linked below 
• ICC Advertising and Marketing Communications Code (EN): Chapter B Sponsorship

B1: Principles governing sponsorship

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

B2: Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfills the obligations set out in the sponsorship agreement

B3: Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

SECTION C: SALES PROMOTIONS

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, for example, are checked for any provisions that affect SP and included below

• If SP communication features a car model and ‘Promotional literature’ (PL) is used, then the energy data requirements for PL will apply, though not in audiovisual media. Rules are here (EN); see Annex IV
• The other Content rules set out in Section B (Safety, Environmental, Credit) must also be observed, together with the Content rules that apply to all product sectors, i.e. the 'General' rules, set out beneath the Sector rules in Content Section B. Principal sources of general rules are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
• Credit rules relating to Standard Information apply only to advertising which indicates an interest rate or any figures relating to the cost of the credit to the consumer
• As Price is often a feature in Sales Promotions, note the Pricing rules shown in Content Section B, point 4, and some promotional pricing references that apply to all product sectors under the General tab below; the Consumer code linked above carries promotional pricing rules under article 23 (e,f,g)

SECTION C: SALES PROMOTIONS

CONTEXT 

This website was created to provide international rules on marketing communications; we do not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation, or law on the mechanics and administration of promotions. Italy in particular has some intricate legislation that we show below, but which we recommend be managed/ interpreted by specialist advisors. Self-regulatory codes and consumer protection legislation relating to promotional pricing is also shown below.

Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal;

sales promotional material should observe the rules set out under the earlier content section B 

LEGISLATION 

• Article 8 E-Commerce Law EN (LD 70/2003) applies to promotions advertised online, which must:

• Be clearly identifiable as a commercial communication
• Clearly identify the person or legal entity on whose behalf the commercial communication is sent
• Provide details of any promotional offers such as discounts, prizes and gifts and their terms and conditions
• Provide details of any promotional competitions and games, where permitted and their conditions of participation

• Consumer Code EN LD 206/2005; Legislative Decrees No. 145/2007 and 146/2007, implementing Directives 2006/114/EC and 2005/29/EC on misleading and comparative advertising and unfair commercial practices respectively. The Code sets out those commercial practices that will be considered unfair in all circumstances (Art. 23), and aggressive commercial practices in articles 24-26 inclusive

Promotional pricing

See also pricing requirements under Point 3.2 in our content section B

• From Article 23 of the Consumer Code; commercial practices which in all circumstances are misleading (relevant extracts only):

e) Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

f) Making an invitation to purchase products at a specified price and then:

1. Refusing to show the advertised item to consumers, or

2. Refusing to take orders for it or deliver it within a reasonable time, or

3. Demonstrating a defective sample of it with the intention of promoting a different product (bait and switch)

g) Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

• In the context of prize promotions, the following is an aggressive commercial practice: Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either there is no prize or other equivalent benefit, or taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost (Art. 26 (h) Consumer Code)
• New promotional pricing/ price reduction rules were established in Directive 2019/2161, which amended Directive 98/6/EC (the Product Pricing Directive), provisions transposed in Italy by LD No.26 of March 7, 2023 (IT) into the Consumer Code, article 17. The rules are set out in English here

Additional prize promotions legislation 

• Decree of the President of the Republic of 26 October 2001 No. 430 (DPR); Ministry Decree 2010/19313/Games/LTT of July 5th 2010; see also links section E for complete list of regulations relevant to sales promotions
• DPR 430/2001 regulates both Prize Contests/ Competitions (Concorsi a premio) and Prize Operations (Operazioni a premio). Prize contests/ competitions operate by means of chance or skill, whilst prize operations award a prize to all those who purchase or sell a particular product or a certain quantity of products

SECTION C: SALES PROMOTIONS

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, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B.

ICC Advertising and Marketing Communications Code (EN), Chapter A Sales Promotion, Chapter C Direct Marketing

For promotions and contests on social media, refer to Own Websites channel; SNS

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Directive 98/6/EC on the Prices of Products offered to Consumers

ICC Code Chapter A Sales Promotion 

A1: Principles governing sales promotions

• All sales promotions should deal fairly and honourably with consumers
• All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
• The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
• The terms and conduct of all sales promotions should be transparent to all participants
• All sales promotions should be framed in a way that is fair to competitors and other traders in the market
• No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute