SECTION C: TV & RADIO/ AV

• The content rules set out in section B apply in this channel; the principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• The following are the channel rules that apply in this medium to this audience (children). Also applicable are the general channel rules that apply to all audiences, children included, all of which rules are shown under the General tab beneath this 'sector' tab

• General Law 13/2022 on Audiovisual Communications (EN key clauses inc. 2022 amends; ES), which sets out the rules for audiovisual commercial communications (inc. advertising spots, teleshopping, product placement and sponsorship), includes in its scope Radio, VOD and video-sharing services, the latter following amends from Directive 2018/1808. Article 124, Rights of the minor, is set out in content section B and below
• 'Self-regulatory Code on Television Contents and Children (ES). These are rules for broadcasters more than advertisers/agencies, though it's as well to be aware of them. They're old, but as far as we can establish, still in force. The code established the general watershed 06:00–22:00 prohibiting the broadcast of programmes rated 18+ and also 'enhanced protection time slots”: 08:00–09:00 and 17:00–20:00 weekdays, and 09:00–12:00 on weekends and public holidays, during which time it is prohibited to broadcast child-sensitive programmes. Restrictions are likely to apply to some forms of advertising (beyond those such as alcohol and gambling which are very specifically confined) such as e.g. cosmetic products, which might be considered to be promoting the 'cult of the body'. See also article 124/3 of the AV law below. Broadcasters will advise

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• Scheduling of advertising messages: Children’s programmes may be interrupted once for each uninterrupted scheduled period of thirty minutes, if the programme is longer than thirty minutes (Art. 138, Law 13/2022)
• Audiovisual commercial communications must not cause physical, mental or moral harm to minors nor engage in the following conduct:

1. Directly encourage minors to buy or rent products or services taking advantage of their inexperience or credulity
2. Directly encourage minors to persuade their parents or third parties to buy advertised goods or services
3. Exploit the special relationship of trust that minors place in their parents, teachers, or other people, such as professionals from children's programmes or fictional characters
4. Show, without justifiable reasons, minors in dangerous situations
5. Encourage conduct that favours discrimination between men and women
6. Encourage the adoption of violent behaviour towards minors, as well as of minors towards themselves or others, or promote stereotypes based on sex, race or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
7. Promote the cult of the body and self-rejection through audiovisual commercial communications of slimming products, surgical interventions or aesthetic treatments, which appeal to social rejection because of physical condition, or success because of weight or aesthetic factors

• 124/2. Audiovisual commercial communications about products particularly aimed at minors, such as toys, must not mislead about their characteristics, their safety, or the capacity and skills necessary for minors to use them without causing harm to themselves or third parties, nor will they present sexist stereotypes in accordance with the provisions of point a) of article 3 of the General Advertising Law 34/1988, of November 11
• 124/3. The competent audiovisual authority will promote the adoption of codes of conduct  with regard to unacceptable audiovisual commercial communication, which accompanies children's programmes or is included in them, of foods and beverages that contain nutrients and substances with a nutritional or physiological effect, in particular those such as fats, trans fatty acids, salt or sodium and sugars, for which an excessive intake in the total diet is not recommended, in order effectively to reduce minors’ exposure to audiovisual commercial communication of these products. In the event that codes of conduct have not been adopted for this purpose or that the competent audiovisual authority concludes that a code of conduct or parts thereof have proven not to be sufficiently effective, the Government will establish regulations regarding the content of the messages or their broadcast schedule applicable to such audiovisual commercial communications in order to ensure the protection of minors

Product placement in children’s programmes is prohibited (Art. 129)

From the self-regulatory codes, we have assembled the rules for audiovisual communications. The structure below is 1) The category 2) the full Code and 3) the specific rules

1) Toys

2) Full Code for Toys advertising (EN 2022)

3) Specific audiovisual rules for the category 

1) Food and beverages

2) Full Code for F&B

 3) Specific audiovisual rules for the category 

• The Spanish Videogames Association AEVI publish a code here (EN). The code is closely aligned with PEGI, but best to check
• The PEGI Code is here; see Article 11 Advertising and Promotion. There are separate PEGI Labelling and Advertising Guidelines which detail requirements by medium; check with PEGI
• Both the PEGI and AEVI codes require the avoidance of ‘enhanced protection times’ (see above) when airing commercials for products rated 12+

SECTION C: TV & RADIO/ AV

APPLICABLE LEGISLATION

Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024

Register for AV Service Providers. GALA Jan 8, 2024

• General Law on Audiovisual Communications 13/2022 of 7 July (ES; abbrev. GL. EN key clauses here), which sets out the rules for advertising spots, product placement, teleshopping and sponsorship; covers TV and Radio, some forms of VOD and, most recently, video-sharing services. The govt. consulted on this law September 2022; ministry link here
• Royal Decree 1624/2011 (EN key clauses; ES) complements the General Law 13/2022 above and develops some of its elements in relation to tele-promotion, self-promotion, product placement, sponsorship and marcoms during the broadcasting of sporting events (referred to as the Advertising Regulation in CNMC Documents below)

STANDARD RULES 

• As well as the channel-specific rules that follow, the commercial communication content rules set out in our preceding content section B generally apply in these channels. The principal set of content rules is from the Autocontrol Code of Advertising Practice (EN)

PROHIBITIONS

• Surreptitious commercial communication and commercial communication using subliminal techniques are prohibited (Art.122/ 3&4). Product placement must be identifiable to the viewer, otherwise it will be considered to be surreptitious; requirements in CNMC Criteria (ES)
• Commercial communication that encourages behaviour harmful to health is prohibited; article 123 of the LG above covers cigarettes and other tobacco products, medicines and health products, some alcoholic beverages, games of chance
• Article 124 covers protection of minors in the context of e.g. direct incitement to purchase, dangerous situations, discrimination beteween men and women, the cult of the body and other situations

SECTION C TV/AV AND RADIO

EASA Jan 2024 update on the AVMSD

• 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

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SECTION C: CINEMA, PRINT, OUTDOOR

Standard rules

• The content rules set out in section B apply in this channel, except those that identify broadcast rules; the principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• Age-sensitive sector advertising, such as alcohol and gambling, obviously should avoid advertising in films primarily intended for children. Rules for such sectors are available via the home page of this website
• The following are the channel rules that apply in this medium to this audience (children). Also applicable are the general channel rules that apply to all audiences, children included, all of which rules are shown under the General tab beneath this 'sector' tab

Applicable self-regulation

• Code of Ethics for Cinema Advertising (2016), following an agreement signed between agencies for cinema advertising and Autocontrol, who enforce the code; copy advice can be obtained from the technical team. ES version:
  https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-etico-de-publicidad-en-cine.pdf
• The code applies to advertising shown on cinema screens. There are general rules (Art 3-5) and the special rules contained in Chapter III, particularly Article 6: Cinema advertising and the protection of children:

• Cinema advertising during films aimed at minors (under 18’s) must comply with the values and principles of child and youth protection. In particular, advertising must not contain any statements or visual presentations that could have the effect of harming minors mentally, morally or physically. The following principles must be respected: Advertising must not:

• Directly incite minors to buy a product or service, exploiting their inexperience and credulity, nor persuade parents or guardians, or parents or guardian of third parties, to purchase the product or service advertised
• Exploit the special trust minors place in parents, teachers or other persons
• Present, without justified reasons, children in dangerous situations, or that incite violent, unjust, divisive, anti-education attitudes
• Incite violence, nor imply advantages of violent attitudes
• Show situations of clear sexual content (Art. 6.1)

• Cinema advertising shown during children’s films must especially respect the principles laid down in the previous paragraph. A children’s film will be understood to mean a film aimed principally at those under 7 years old (Art. 6.2)

Videogames

• The Spanish Videogames Association AEVI publishes a Code here. The Code is closely aligned with PEGI, but best to check
• The PEGI Code is here; see Article 11 Advertising and Promotion. There are separate PEGI Labelling and Advertising Guidelines which detail requirements by medium; check with PEGI
• Signatories shall not specifically target advertising for products rated 16 or 18 to consumers for whom the product is not rated as appropriate (PEGI Code 11.v)

Standard rules

• The content rules set out in section B apply in this channel, except those that identify broadcast rules; the principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• Age-sensitive sector advertising such as alcohol and gambling, obviously should avoid advertising in print primarily intended for children. Rules for such sectors are available via the home page of this website
• The following are the channel rules that apply in this medium to this audience (children). Also applicable are the general channel rules that apply to all audiences, children included, all of which rules are shown under the General tab beneath this 'sector' tab

Videogames

• The Spanish Videogames Association AEVI publishes a Code here (EN). The code is closely aligned with PEGI, but best to check
• The PEGI Code is here; see Article 11 Advertising and Promotion. There are separate PEGI Labelling and Advertising Guidelines which detail requirements by medium; check with PEGI
• Signatories shall not specifically target advertising for products rated 16 or 18 to consumers for whom the product is not rated as appropriate (PEGI Code 11.v)

Standard rules

• The content rules set out in section B apply in this channel, except those that identify broadcast/ AV rules; the principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• Age-sensitive sector advertising such as alcohol and gambling should be aware of some local (in particular) restrictions that may prohibit the placement of posters in the vicinity of e.g. schools 
• The following are the channel rules that apply in this medium to this audience (children). Also applicable are the general channel rules that apply to all audiences, children included, all of which rules are shown under the General tab beneath this 'sector' tab

Videogames

• The Spanish Videogames Association AEVI publishes a Code here (EN). The Code is closely aligned with PEGI, but best to check
• The PEGI Code is here (EN). see Article 11 Advertising and Promotion. There are separate PEGI Labelling and Advertising Guidelines which detail requirements by medium; check with PEGI
• Signatories shall not specifically target advertising for Products rated 16 or 18 to consumers for whom the product is not rated as appropriate (PEGI Code 11.v)
• In all cases, the advertising of interactive software products classified as “recommended for 18+ years” may not be disseminated on posters, billboards and other advertising media, which are within 100 linear metres of the entrance gates to infant, primary and secondary educational establishments (Art. 19.2 AEVI Code)

SECTION C: CINEMA, PRINT, OUTDOOR

CINEMA

• Code of Ethics for Cinema Advertising (2016). The Code is enforced by Autocontrol jury; copy advice can be obtained from the Technical team. ES version here
• General rules Articles 3-5. Special rules in Chapter III especially Articles 6 and 7 on protection of children. Key clauses shown below (GRS translation)
• The Content rules set out in Section B apply to advertising in cinemas, except for those rules that identify broadcast channels. The principal set of rules is from Autocontrol’s Code of Advertising Practice (EN)
• SAWA is the Screen Advertising World Association; member in Spain 014 Digital Screen

Special rules

Advertising in the cinema and protection of children (Art. 6)

• Cinema advertising during films aimed at minors (under 18’s) must comply with the values and principles of child and youth protection. In particular, advertising must not contain any statements or visual presentations that could have the effect of harming minors mentally, morally or physically. The following principles must be respected. Advertising must not:
   
  • Directly incite minors to buy a product or service, exploiting their inexperience and credulity, nor persuade parents or guardians, or parents or guardian of third parties, to purchase the product or service advertised
  • Exploit the special trust minors place in parents, teachers or other persons
  • Present, without justified reasons, children in dangerous situations, or that incite violent, unjust, divisive, anti-education attitudes
  • Incite violence, nor imply advantages of violent attitudes
  • Show situations of clear sexual content (Art. 6.1)
     
• Cinema advertising shown during children’s films must especially respect the principles laid down in the previous paragraph. A children’s film will be understood to mean a film aimed principally at those under 7 years old (Art. 6.2)

Advertising of alcoholic beverages (Art. 7)

• In addition to what is envisaged in the applicable regulations, advertising of alcoholic beverages in cinemas must be aligned, where applicable, to the provisions contained in the Self-Regulatory Codes from the Spanish Federation of Spirits, the Spanish Brewers Association and the Spanish Wine Federation. GRS note: see Alcohol Sector for translations

Content rules in Section B will apply to Print advertising, except those rules specific to Broadcast media. The principal set of rules is from Autocontrol’s General Code of Advertising Practice (EN)

OUTDOOR

• Content rules set out in Section B apply to Outdoor advertising, except those rules specific to Broadcast media
   

In the context of roadside static advertising:
 

• Under Highways Law 37/2015 (EN); advertising is only permitted on urban sections/ stretches of road, as classified by the Ministry of Public Works and Transport (See Preamble and Art. 11(2G) Law 37/2015)
• Article 37 of the Highways Law includes advertising provisions:
   

• Outside of urban stretches of road it is prohibited to advertise in any place that would be visible from the road and in general any advert that could possibly capture the attention of the driver on the road, so outdoor advertising visible from motorways and highways is prohibited (Art. 37.1)
• This applies to all signs, posters, markings, shapes, logos and images, whatever their type, size (Art. 37.2)

Autonomous regional legislation

• Autonomous regions will often have legislation that affects outdoor advertising; this is particularly the case in respect of Alcohol advertising, e.g. In Madrid the Regulating Ordinance on Outdoor Advertising (ES):
  http://www.sttmadrid.es/images/pdf/PE/Ordenanza_de_Publicidad_Exterior_OPE.pdf

The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here

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 regulatory picture for children's advertising in 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. In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant law is referenced. The impact of GDPR is shown under individual channel sections where possible/ applicable

Privacy issues should be reviewed with specialist advisors

• Per intro above, online advertising is subject to the rules set out in content section B, except those specific to broadcast and defined offline media. if it’s advertising, it’s in remit. The principal source of marcoms content rules is the Autocontrol Code of Advertising Practice (EN)
• The following are the channel rules that apply in this medium to this audience (children). Also applicable are the general channel (i.e. placement) rules that apply to all audiences, children included, a selection of which we show below, and all of which are shown under the General tab beneath this 'sector' tab

• The collection and use of personal data for direct marketing purposes is regulated nationally by the new Data Protection Act (ES), which accompanies the GDPR. See below 1) Use of Personal data
• Law 34/2002 regarding Information Society Services (ISS) and electronic commerce known as LSSI (EN / ES). Title III Electronic Commercial Communications, Articles 8, 10, 19, 20. Scope: ISS definition is from the LSSI Annex
• Royal Legislative Decree 1/2007 approving the consolidated text of the General Consumer and User Protection Act ES / EN (key clauses inc. 2022 amends). Article 96 Distance Commercial Communications, point 6 (part): 'In all cases, the provisions in force on the protection of minors and respect for privacy shall be complied with.'
• The General AV Law 13/2022 ES / EN key clauses inc. 2022 amends, applies to VOD services and, most recently following amends driven by Directive 2018/1808, video-sharing services, where there are new rules related to the identification of commercial conmmunications by the platform and also by the user/ uploader
• The law above also carries rules related to the content of audiovisual commercial communications aimed at minors which apply in identified online channels; these have have been set out under our content section B, or see the linked files. Some member states have explicitly stated influencers might qualify as providing an 'audiovisual communication service,' i.e. some of what they do is in remit
• The Unfair Competiton Law 3/1991 ES / EN key clauses inc. 2022 amends. Article 30 repeats (and extends beyond AV communications) the 'exhortation' rules found in the AV law above: 'Aggressive practices and minors: Inclusion in an advertisement of a direct exhortation to children to purchase goods or use services or to persuade their parents or other adults to acquire the advertised goods or services shall be deemed aggressive and hence unfair.'

• Confianza Online Ethical Code (COEC) specific to electronic distance communications media ES 2022; key clauses in English here; chapter IV Protection of Minors
• From a YT blog of October 2021 is the news 'we’ve recently updated our policies to remove overly commercial content from YouTube Kids, such as videos that only focus on product packaging or directly encourage children to spend money.' Content policies for YouTube Kids
• Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 

• As above, and especially with regard to the processing of children’s data, specialist advice should be sought
• From the EC Data Protection pages relating to the GPPR:


‘Are there any specific safeguards for data about children?

• Your company/organisation can only process a child’s personal data on grounds of consent with the explicit consent of their parent or guardian up to a certain age. The age threshold for obtaining parental consent varies between 13 and 16 years, depending on the age established in each EU Member State. Check with your National Data Protection Authority (Note: In the case of Spain, that’s AEPD; the new Data Protection Act (ES), states in Article 7 that data of those over fourteen years of age may be processed with their consent
• A reasonable effort must be made, taking into consideration available technology, to verify that the consent given is truly in line with the law. That means that your company/ organisation must implement age-verification measures (for example control questions, actions on the website)
• The consent from the parent or guardian must be obtained if your organisation works on online social networking sites that provide free games to children or family insurance, for example
• If your organisation targets children, you must ensure that any information and communication addressed to a child is easily accessible and in clear and plain language that a child can easily understand’

• Articles 8 and 12 and Recitals (38) and (58) of the GDPR. References are here:
  http://www.g-regs.com/downloads/CHEUGDPRrefs.pdf 
• European Data Protection Board Guidelines on Consent under Regulation 2016/679; see Section 7.1. This is definitive guidance on Consent issues relating to the GDPR generally and children in particular, providing e.g. direction on the obtaining of consent from parental authorities, rules relating to Information Society Services etc.
  https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_202005_consent_en.pdf (May 2020)

Scope: 1. This Code shall apply to matters affecting advertising, e-commerce, the protection of minors and personal data protection, in accordance with the provisions of the relevant sections of this Code, when conducted via electronic distance communications media (Art. 2.1, part)

Definition of a minor: Article 4 (n): Any individual who has not attained the legal age of majority (18 years of age). For the purposes of obtaining consent for the processing of minors' data, consent obtained by persons over the age of fourteen shall be considered lawful, while consent obtained by minors under the age of fourteen shall be unlawful if the consent of the holder of parental authority or guardianship is not given.

• Advertising disseminated via electronic distance communications media must not cause moral or physical detriment to minors, and therefore must:

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1. Identify content solely intended for adults
2. Never directly encourage minors neither to buy a product or service, abusing their lack of experience or gullibility, nor to persuade their parents or guardians, or parents or guardians of third parties, to purchase products or services in question
3. Never abuse the special trust that children place in their parents, guardians, teachers, and other persons must never be abused
4. never place children, without good reason, in dangerous situations

• Entities must not include illegal content, declarations, or visual presentations on their websites or which may threaten minors physically, mentally, or morally
• If companies have areas or sections on their websites directed toward adults that may mentally, morally, or physically harm minors, these areas or sections must be correctly identified prior to browsing 

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024

CONTEXT

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important. Autocontrol define as 'that which is aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘

In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant articles from law are referenced. The impact of GDPR is shown where possible/ relevant under individual channel sections that follow. Privacy issues should be reviewed with specialist advisors

KEY RULES

• Per intro above, online advertising is subject to the rules set out in content section B, except those specific to broadcast. if it’s advertising, it’s in remit. The key set of content rules is from Autocontrol’s Code of Advertising Practice (EN)
• The Confianza Online Ethical Code is an important source of online channel rules. The code linked is the 2022 version in Spanish, key provisions from which are unofficially translated here
• 24/11/20. A Code of Conduct on the use of Influencers in advertising from the Association of Spanish Advertisers and Autocontrol. The code entered into force on January 1st, 2021. The Code in Spanish is the applicable version; it's unofficially translated by GRS here

APPLICABLE LEGISLATION 

Non-exhaustive

• E-COMMERCE: Law 34/2002 on Information Society Services and Electronic Commerce (LSSI) EN key clauses / ES. Title III Electronic Commercial Communications, Articles 8, 10, 19, 20. Scope is set out in the Annex shown in the linked document; information requirements shown below 
• PERSONAL DATA PROCESSING: most of the channels that follow will involve the deployment of marketing databases; in the event that processing includes personal data (that which can identify individuals) then lawful processing rules from the GDPR may apply
• CONSUMER PROTECTION: the core marketing and commercial communications legislation in Spain is Law 3/1991 on Unfair Competition EN key clauses / ES inc. 2022 amends; applicable online
• Royal Legislative Decree 1/2007 ES / EN (key clauses inc. 2022 amends) the General Consumer and User Protection Act, which largely applies to the relationships and contracts entered into between consumers and business people or companies, but which carries under article 20 the rules on advertising that constitute an 'Invitation to Purchase.'
• 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

SELF-REGULATION 

• Autocontrol’s Code of Advertising Practice (EN); applicable to all media 
• Confianza Online Ethical Code (COEC) is specific to electronic distance communications media EN key clauses / ES (both 2022)
• The Autocontrol Influencer Code of Conduct 2020 ES / EN defines when Influencer advertising qualifies as such and sets out identification requirements
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD

INTERNATIONAL/ GUIDELINES 

• From a self-regulatory perspective, the document that guides Digital Marketing Communications (DMCs) is the European Advertising Standards Alliance's (EASA) 2023 DMC Best Practice 
• The ICC Advertising and Marketing Communications Code (EN), which underpins much of self-regulation worldwide, includes a specific Chapter C, Direct Marketing and Digital Marketing Communications. Some rules are shown under the relevant channel headings that follow. The full code is linked
• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR

e-Commerce information requirements (from legislation)

• In the context of e-Commerce, the information requirements from articles 10 and 20 LSSI (EN key clauses) relating to an information society service provider and article 20 for rules on 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 from RLD 1/2007 (EN key clauses) apply
• The Confianza Self-Regulatory Code also carries a chapter on e-Commerce
• Rules for both of the above entries are set out under the later section headed emails/SMS

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

Privacy issues should be reviewed with specialist advisors

• The general cookie rules, i.e. those that apply to all product categories and audiences, children included, are shown under the General tab below. These primarily are from Law 34/2002 on Information Society Services and Electronic Commerce, known as LSSI or LSSICE. Title III Electronic Commercial Communications, Article 22.2 EN / ES
• However, the introduction of the GDPR 2016/679 from May 2018 may mean that if cookies (can) identify individuals, then GDPR lawful processing rules may apply
• Consent to (children’s) personal data processing under the GDPR regime is spelt out under the preceding section, Online Commercial Communications. In short, if the child is under 14, parental or guardian authorisation of consent is required (Articles 8 and 12 of the GDPR)
• The other significant influence in child-related data protection is the self-regulatory Confianza Online Code of Conduct 2022 ES / EN key clauses; see articles 29 to 32 which include requirements for processing minors' data. Autocontrol also offer a cookie advice service 
• Toys: websites promoting toys must comply with the obligations regarding the use of cookies under Article 22 of Law 34/2002 of 11 July on Information Society Services and Electronic Commerce, following its amendment by Royal Decree-Law 13/2012 of 30th March, and General Telecommunications Law 9/2014 of 9th May (Art. 56, Code of Self-Regulation for Toys Advertising aimed at Children EN)

• OBA, like any other advertising, is subject to the content rules set out in our earlier section B - both the child-specific and the general rules - except those that identify broadcast and identified offline channels; the principal source of rules is the Autocontrol Code of Advertising Practice (EN), though it's as well also to be familiar with the legislation set out under points 2 and 3 of section B 
• The channel rules for all product categories and audiences also apply; see the General tab below
• The tracking/ tracing cookies that may generate the advertising, albeit third party, may also be subject to the cookie rules set out above. Check with specialist advisors

• The definitive official guidance on profiling for marketing purposes is here: Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679. See Chapter V Profiling and Children. From that: ‘Because children represent a more vulnerable group of society, organisations should, in general, refrain from profiling them for marketing purposes. Children can be particularly susceptible in the online environment and more easily influenced by behavioural advertising. For example, in online gaming, profiling can be used to target players that the algorithm considers are more likely to spend money on the game as well as providing more personalised adverts. The age and maturity of the child may affect their ability to understand the motivation behind this type of marketing or the consequences. ‘ (Footnotes excluded)

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• A good number of companies and organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu).  The OBA icon,

• which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA and managed from a regulatory perspective under the IAB Europe OBA framework.
• OBA segments for children under 13 are not allowed according to the IAB Europe framework linked above (Principle IV. Sensitive Segmentation A. Children’s segmentation: ‘Companies agree not to create segments for OBA purposes that are specifically designed to target children. For the purposes of this provision, children refers to people age 12 and under.’)

SECTION C: COOKIES AND OBA

COOKIES

New guidance on analytic cookies - is consent always required? (EN)
Hogan Lovells January 16, 2024. Guidance here (ES)

AEPD updates its Cookie Guide (ES). July 11, 2023

The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 

Google says cookie here to stay until 2024. July 27, 2022

Privacy Sandbox next steps. May 18, 2023

This section deals with cookies in the context of advertising delivery, taking in OBA. We don’t address ‘cookie statements’ specifically, though some guidance documents, which may contain references, are linked. In the context of GDPR 2016/679; when cookies (can) identify individuals, then GDPR lawful processing rules apply. Privacy issues should be reviewed with specialist advisors 

• COOKIES: Law 34/2002, regarding Information Society Services and electronic commerce known as LSSI or LSSICE. Title III Electronic Commercial Communications, Article 22.2 EN / ES
• DATA PROCESSING: see GDPR reference above. The national act that sits ‘alongside’ GDPR is the Law on Data Protection and Digital Rights (ES) of 5 December 2018
• Guide on the Use of Cookies (ES) July 2023. From the AEPD Spanish DPA, Agencia Española de Protección de Datos
• Autocontrol’s cookie advice service in English is available here
• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR
• IAB Europe published 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

• DATA PROCESSING: The Confianza Online Ethical Code (2022; ES) Data protection section reflects GDPR. An official translation from Autocontrol is in hand. Meanwhile, unofficial translation of the key articles here
• DATA PROTECTION: Autocontrol incorporate data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here (EN)
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here
• COOKIES: Confianza Online Ethical Code. Article 27 of the 2022 version linked above:

1. The use of cookies (including other similar devices) by the affiliated entities will be subject to the provisions of the Law on Information Society Services or the regulations that replace it
2. For the use of cookies not excepted from obtaining informed consent in accordance with the regulations, the affiliated entities must obtain said informed consent in accordance with the provisions of the GDPR. In particular, the affiliated entities will take into account the following: 

1. When describing the purpose of the cookies, ambiguous descriptions will be avoided
2. The consent must in any event be express and, in the cases required by data protection regulations, explicit (therefore, in no circumstances will consent obtained under the ‘continue browsing’ formula be valid)
3. If third-party cookies are used, the data subject will be informed of this

3. For illustrative purposes and for a better understanding given its complex nature, Confianza Online recommends that the affiliated entities follow the guidelines set by the Spanish Agency for Data Protection in their current version or later, as well as the use of the examples published in the Guide on the use of cookies.
   https://www.aepd.es/es/documento/guia-cookies.pdf

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

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 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 19th January 2022

• OBA is the same as any other advertising in the sense that it is subject to the content rules set out in our section B, except those specific to broadcast. Principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• Express consent is required for third party cookies; they will be treated the same as first party cookies. Opt-out mechanisms are not valid
• Legal reports issued by AEPD provide requirements regarding the use of third party cookies/ tracker cookies in OBA. These are in Spanish; we have translated the relevant section of p. 4 AEPD 2014-0196, as follows:

‘It is not necessary to provide links to third party websites where the purposes of such cookies are clearly shown. If the editor/ website owner cannot provide a sufficient explanation on the purposes of cookies used by third parties, or if it is deemed relevant, the editor must include a link to the third party website in which there is an explanation on cookies used and their purpose. The editor/ publisher must ensure that the links open out onto pages that exist which are not in English, but Spanish or co-official language used on the website. In addition, the editor must make sure that the links are not obsolete or broken, and therefore they are not directing users to out-of-date versions of the documents

• Note: the report referenced in the above is pre GDPR. The AEPD have ‘archived’ this and other reports in a database that can be accessed here, though we have come second in a wrestle with the search function. More recent reports are available here

SECTION C: COOKIES AND OBA

'It’s time to move': Google on Global Ads on cookie deprecation, privacy regulation, AI

Campaign Asia February 29, 2024

Consent Rules Apply to Broader Range of Tracking Technologies

McDermott Will &Emery January 18, 2024

EASA Jan 2024 update on the Commission's cookie pledge and GDPR

New EDPB guidelines on the scope of the ‘cookie rule’. DLA Piper Nov 22, 2023

Guidelines here. This is re technical scope 

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

Reed Smith LLP/ Lex November 8, 2023

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

Covers interplay between the AI act, the DSA and GDPR 

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

• Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR

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

Privacy issues should be reviewed with specialist advisors

• The marcoms content rules set out in our earlier section B - both the child-specific and the general rules - apply to commercial electronic communications, except for those rules that identify broadcast and other offline channels; the principal source of marcoms content rules is the Autocontrol Code of Advertising Practice (EN)
• The channel (i.e. placement) rules that apply to all product categories and audiences also pertain; see the General tab below. The Spanish regime, along with most, operates an opt-In/ soft opt-in system; in other words, consent must be obtained before sending an electronic communication unless it relates to similar products to those already purchased by the recipient, and it must contain a simple and no-cost means to opt-out. Forms of consent are set out under the General tab below

• The principal legislation in this context is Law 34/2002 on Information Society Services and Electronic Commerce (LSSI) EN. Art 8 (1d): In the event that a particular information society service undermines or could undermine the protection of youth and children, the competent bodies for their protection, in the exercise of functions assigned to them by law, can take necessary measures to terminate its provision or to remove the infringing data (note: the article is not shown in the translation)
• If data processing involves personal data (that which identifies individuals), lawful processing rules from the GDPR may apply. Regarding consent rules for children, these are spelt out under the earlier online Commercial Communications section. In short, if the child is under 14, parental or guardian authorisation of consent is required (Articles 8 and 12 of the GDPR). Best guideline for consent is here; see Section 7.1 for children

Confianza Online Ethical Code (ES; EN key clauses here); Advertising and Protection of Minors 

• Advertising disseminated via electronic distance communications media must not cause moral or physical detriment to minors, and therefore must:

1. Identify content solely intended for adults
2. Never directly encourage minors neither to buy a product or service, abusing their lack of experience or gullibility, nor to persuade their parents or guardians, or parents or guardians of third parties, to purchase products or services in question
3. Never abuse the special trust that children place in their parents, guardians, teachers, and other persons must never be abused
4. Never place children, without good reason, in dangerous situations

The Confianza Code is set out in more detail under our earlier Online Commercial Communications section. The provisions above are those most relevant to direct electronic communications/ children. See article 31 for rules on processing minors' data 

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

STANDARD RULES 

• Content of electronic commercial communications is subject to the rules set out in our earlier content section B, except those rules specific to broadcast. The principal source of rules is Autocontrol's General Code of Advertising Practice (EN) and in this online context the Confianza Online Ethical Code. The linked latter code is the 2022 version in English. Key provisions unofficially translated here. The code contains a single article (23) under the header 'Advertising' to indicate content rules in electronic commercial communications: The advertising in electronic distance communications media of this code’s affiliated entities must be in accordance with the applicable law and with the AUTOCONTROL Advertising Code of Conduct as well as being being decent, honest and truthful, according to the terms in which these principles have been articulated by the International Chamber of Commerce Code of Advertising Practice

1. APPLICABLE LEGISLATION

• DATA PROCESSING: If data for the sending of electronic communications is processed and it constitutes personal data, i.e. that which identifies an individual, then the GDPR may apply. Privacy issues should be reviewed with specialist advisors
• E-COMMERCE: Law 34/2002 on information society services and electronic commerce, known as LSSI. Title III Electronic Commercial Communications Articles 19, 20, 21 EN key clauses / ES applicable B2C and B2B; implements E-Privacy Directive 2002/58/EC Article 13, as well as the E-Commerce Directive 2000/31/EC
• CONSUMER PROTECTION: Royal Legislative Decree 1/2007 the General Consumer and User Protection Act ES / EN article 20 for ‘Invitation to Purchase’ Definition Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase
• Art 29 (2) of Law 3/1991 (EN key clauses) on Unfair Competition; this is the clause prohibiting ‘unsolicited and repeated proposals/ offers by telephone, fax, e-mail or by other means of distance communications’. This law also represents the core legislation in commercial practices/ marketing communications, transposing the UCPD 2005/29/EC and applicable online
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lex here 

2. APPLICABLE SELF-REGULATION 

• Confianza Online Ethical Code (COEC); the 2022 version in Spanish is here; key provisions unofficially translated here 
• IAB Spain legal guide on e-mail marketing ES 

• The ICC Advertising and Marketing Communications Code (EN); see 2.2. below

• Autocontrol include data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here

DATA PROTECTION: EDPB GUIDANCE

• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR

1.1. E-COMMERCE / INFORMATION SOCIETY SERVICE

(Art. 20 LSSI) Key clauses 

Note that in setting out the rules below, we show primarily, and lead with, the LSSI versions, unless otherwise indicated

• Commercial communications sent by email (incl. SMS, MMS) must be clearly identifiable as such and the natural or legal person on behalf of whom they are made must also be clearly identifiable (Art 20.1 LSSI; Art 96 (1) RLD 1/2007)
• In emails (incl. SMS/ MMS) containing promotional offers such as discounts, premiums and gifts and promotional competitions or games, the necessary prior consent must have been obtained; the requirements in Article 20.1 must be complied with along with applicable commercial laws and regulations (Art. 20.2)
• Such promotional offers in addition to promotional competitions or games must be clearly identifiable as such, and the conditions necessary to qualify or participate must be easily accessible and presented clearly and unambiguously (Art. 20.2)
• The provisions of the preceding paragraphs shall be without prejudice to the provision of regulations issued by the Autonomous Communities (Art. 20.3)
• It is prohibited to send commercial communications by email which disguise or conceal the identity of the sender; as well as encourage recipients to visit websites which contravene the provisions of Article 20 LSSI (Art 20.4 LSSI)

1.2. CONSENT AND OPT-OUT 

Key clauses

• Consent is based on an opt-in regime: it is prohibited to send advertising or promotional communications by electronic mail or another equivalent means of electronic communication when it has not been requested or expressly authorised in advance by the recipient of the communications (Art 21.1 LSSI)
• Soft Opt-in: as an exception, the provisions of the previous paragraph will not apply where there is a prior contractual relationship, provided:
   
  • The contact details of the recipient have been lawfully collected
  • The commercial communication sent relates to products or services (from the same provider/ company) which are similar to those previously purchased by the customer (Art 21.2 LSSI)
     
• In all cases, a free-of-charge and easy to use opt-out procedure must be available at the time of data collection and in each subsequent commercial communication (Art. 21.2 LSSI; Art. 96(4) RLD 1/2007)
• When commercial communications have been sent by email, they must include a valid e-mail address where recipients can exercise their right to opt-out. It is prohibited to send communications which do not include such an address (Art 21.2 (3rd para) LSSI and Art. 22.1 (2nd para) LSSI)
• The recipient can at any time revoke his/ her consent to receiving commercial communications by simply notifying the sender of such a desire (Art. 22.2 LSS); information on the free and simple means/ way of revoking consent must be provided electronically (Art. 22.2 2nd para)

1.3 PERSONAL DATA; B2C solely

• When personal data has been used for commercial communications without obtaining consent (soft opt-in principle above, or the personal data has been obtained from sources accessible to the public, see Art. 6.2 LOPD), the recipient must be provided with the following information: the origin of the data; the identity of the controller, as well as the rights available to the data subject, including the opportunity to object to receiving communications (Art 96.6 RLD 1/2007)
• Note that the situation above should be reviewed in light of the GDPR; check with the AEPD or advisors whether the opt-out scenario continues to apply when using sources accessible to the public

1.4. HARASSMENT

• Under Art. 29 (2) of Law 3/1991 Unfair Competition Act, aggressive practices using harassment will be considered unfair commercial practices in all cases and under all circumstances (Art. 19.2):
   
  • Making unsolicited and repeated proposals/ offers by e-mail, except in circumstances and to the extent legally justified to comply with a contractual obligation, shall be deemed unfair
  • In these communications, the businesses (senders) must use systems that enable the consumer to object to receiving commercial proposals/ offers from them
  • The above is without prejudice to the provisions from existing regulations on personal data protection (GDPR), Information Society Services (i.e. LSSI), telecommunications and distance contracting with consumers or users (i.e. RLD 1/2007), including the distance contracting of financial services

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 owned, such as marketers’ own websites and SNS spaces: if the communication from the website owner is advertising, it’s subject to the rules. The Autocontrol definition of advertising is ‘communication aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trademarks and trade names.‘ Clearly, much content on owned websites won’t be advertising; for exemptions, e.g. UGC, see the EASA Recommendation linked under the General tab below. The Confianza Online Ethical Code (ES 2022, EN key clauses) carries advertising definition and exemptions under article 4p

• Content rules from our earlier section B apply to advertising (as defined above) on or from owned websites, except those specific to broadcast and other defined offline media. The principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• Electronic commercial communications generated from owned websites will be subject to the information/ consent rules set out in the Email/SMS/MMS section above
• If communication is in the context of e-commerce, with the website performing as 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 then the rules from Law 34/2002 apply; Article 8 (1d) that youth and child protection measures are observed
• Issues may arise from the introduction of the GDPR 2016/679: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Processing of children’s personal data is addressed under the earlier section Online Commercial Communications. Privacy issues should be reviewed with specialist advisors
• Royal Legislative Decree 1/2007 approving the consolidated text of the General Consumer and User Protection Act ES / EN (key clauses inc. 2022 amends). Article 96 Distance Commercial Communications, point 6 (part): In all cases, the provisions in force on the protection of minors and respect for privacy shall be complied with
• The General AV Law 13/2022 ES / EN key clauses inc. 2022 amends, applies to VOD services and, most recently following amends driven by Directive 2018/1808, video-sharing services, where there are new rules related to the identification of commercial conmmunications by the platform and also by the user/ uploader
• The law above also carries rules related to the content of audiovisual commercial communications aimed at minors which apply in identified online channels; these have have been set out under our content section B, or see the linked files. Some member states have explicitly stated influencers might qualify as providing an 'audiovisual communication service,' i.e. some of what they do is in remit
• The Unfair Competiton Law 3/1991 ES / EN key clauses inc. 2022 amends. Article 30 repeats (and extends beyond AV communications) the 'exhortation' rules found in the AV law above: 'Aggressive practices and minors: Inclusion in an advertisement of a direct exhortation to children to purchase goods or use services or to persuade their parents or other adults to acquire the advertised goods or services shall be deemed aggressive and hence unfair.' This law also incorporates new requirements, transposed from Directive 2019/2161, related to search rankings and consumer reviews (see arts. 26 & 27)

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The code linked above is the 2022 version in Spanish, key clauses translated here 

Advertising and protection of minors (Art. 29)

• Advertising disseminated via electronic distance communications media must not cause moral or physical detriment to minors, and therefore must:

1. Identify content solely intended for adults
2. Never directly encourage minors neither to buy a product or service, abusing their lack of experience or gullibility, nor to persuade their parents or guardians, or parents or guardians of third parties, to purchase products or services in question
3. Never abuse the special trust that children place in their parents, guardians, teachers, and other persons must never be abused
4. never place children, without good reason, in dangerous situations

Contents on protection of minors (Art. 30)

• Entities must not include illegal content, declarations, or visual presentations on their websites or which may threaten minors physically, mentally, or morally
• If companies have areas or sections on their websites directed toward adults that may mentally, morally, or physically harm minors, these areas or sections must be correctly identified prior to browsing

See article 31 for rules on processing data of minors

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. The Autocontrol definition is ‘all advertising communication aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below and article 4p of the Confianza Online Code (COEC), 2022 version unofficially translated here.

Issues may arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

STANDARD RULES 

• Content rules from our earlier section B apply to advertising (as defined) on or from owned websites, except those rules specific to broadcast channels. The principal source of content rules is the Autocontrol Code of Advertising Practice (EN)

APPLICABLE LEGISLATION AND SELF-REGULATION 

Legislation/ guidance 

• DATA PROCESSING: Per the reference in the introduction above, website owners processing data that may be defined as personal data should be aware that lawful processing rules from the GDPR may apply; In the case of Spain, the Regulation is ‘recognised’ by the new Data Protection Act (ES), whose purpose is to ‘adapt the Spanish legal system to Regulation (EU) 2016/679.’ Former national data protection laws are repealed 
• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR
• E-COMMERCE: Law 34/2002 (LSSI) regulates commercial communications in e-commerce, implementing the e-Commerce Directive 2000/31/EC and article 13 (unsolicited communications) of e-Privacy Directive 2002/58/EC. This imposes information requirements on ‘information society service providers’ and addresses e-marketing communications, establishing the opt-in principle. Details are in the preceding section, Emails and SMS
• COOKIES: The same Law 34/2002 carries the ‘Cookie Directive’ rules; see our earlier Cookies and OBA section for further information, though this is a complex area in Spain especially, and best reviewed with advisors
• CONSUMER PROTECTION: The following laws also regulate online communications as they regulate all forms of communication. Provisions are spelt out in our content section B; the links are here just in case:

• Law 3/1991 on Unfair Competition (EN key clauses inc. 2022 amends)
• Law 34/1988 on General Advertising (EN key clauses inc. 2022 amends)
• Royal Legislative Decree 1/2007  (EN key clause) in particular article 20, information requirements for an ‘invitation to purchase’

Self-regulation

• The principal self-regulatory influence in this channel context is the Confianza Online Ethical Code (COEC); 2022 version in Spanish here; key provisions unofficially translated here. Some of the most relevant articles shown below 
• EASA Digital Marketing Communications Best Practice 2023; see section 2.2.5 for guidance on marketer-owned digital properties
• The EASA Best Practice Recommendation on Influencer Marketing 2023 is not binding, but it is helpful guidance on how European regulators should approach this marketing technique
• Autocontrol include data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here (EN)
• 24/11/20. A code of conduct on the use of Influencers in advertising has been published by the Association of Spanish Advertisers and Autocontrol. The code entered into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here, the English version shown alongside the original Spanish
• Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here

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 2023

• 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.. ‘Native’ advertising aimed at children does not attract rules specific to the technique and audience but will be particularly sensitive for obvious reasons

• Native advertising is the same as any other advertising in as much as Content and Channel rules apply; so the Children’s and General Content rules set out in Section B apply to Native advertising
• Key article 13 Authenticity from the 2021 Autocontrol Code of Advertising Practice: ‘Commercial communications will be identifiable as such regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labeled as such. That the real intent is advertising must be obvious. Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis.' 
• Rules in full under the General tab below including applicable legislation; see the UCPD/ Unfair Competition Law ‘blacklist’ and misleading omission rules. These apply to all product categories and audiences, Children included 

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. The key issue, obviously, is that of advertising identification. If it’s advertising, defined in Spanish law as ‘Any form of communication made by natural, legal, public or private person in the exercise of its commercial, business, craft or professional activities that aims at direct or indirect promotion of moveable or immoveable goods, services, rights or obligations' (Art. 2 Law 34/1988), then like any other advertising, it’s subject to the rules set out in our content section B

LEGISLATION

• General Advertising Law (34/1988) Article 2 Definition of advertising EN key clauses inc 2022 amends

• Unfair Competition Act (3/1991) Article 26 Covert Commercial Practices EN key clauses inc 2022 amends

• Law 34/2002 on ISS and Electronic Commerce (LSSICE) Article 20.1 Identification of electronic commercial communications EN key clauses / ES

GUIDANCE

• IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'

• The ICC’s Guidance on Native Advertising (EN): https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf

SELF-REGULATION 

• Point 13 Autocontrol Code of Advertising Practice (EN). Point 13, critical in this context, has been amended. See translated clauses in the link and below

LEGISLATION KEY CLAUSES 

• Under Article 26 Covert Commercial Practices of the Unfair Competition Act (Law 3/1991) payment to include promotional communications of goods or services as information in the media without clearly specifying in the content or by means of images and sounds clearly indicating to consumers or users that this is an advertisement, shall be considered misleading and hence an unfair commercial practice.

• Commercial communications sent by electronic means shall be clearly identifiable as such and the entity or person on behalf of which they are made must also be clearly identifiable (Art. 20.1 LSSICE; Law 34/2002 on Information Society Services and Electronic Commerce)

• As a result, the average consumer or user must be able to easily identify advertising content and distinguish it from other content. IAB Spain Guide in S. 4.6 confirms terms used to identify native advertising – which vary according to the context: “contenido presentado por – content presented by”; “contenido destacado – featured content”; contenido patrocinado – sponsored content”; or before an advertising message placing the word “publicidad” (advertising) or “publi”. Simply referencing the name of the brand without anything else is not recommended

SELF-REGULATION KEY CLAUSES

• Commercial communications will be identifiable as such regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labeled as such. That the real intent is advertising must be obvious. Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis (Autocontrol’s General Code of Advertising Practice: B. Authenticity, point 13)

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

Following feedback, we no longer cover Telemarketing 

Following feedback, we no longer cover Telemarketing 

Following feedback, we no longer cover Telemarketing 

SECTION C: DIRECT POSTAL MAIL

• Direct Mail in most countries, Spain included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications; it is not entirely clear whether that action needs to be taken by parent/ guardian in the case of children, though it may be safer to assume so
• Content rules set out in section B apply to direct mail, except those rules that identify broadcast/ AV channels, together with the content rules shown under the General tab in section B. In particular, the Autocontrol Code of Advertising Practice (EN)
• The channel rules that apply to all product categories and audiences shown under the General tab below also apply. These include e.g. requirements to respect the opt-out register
• Any processing of data that identifies individuals, i.e. ‘personal data’, may be subject to rules from the GDPR. For consent to the processing of children’s (personal) data specifically, parental/ guardian permission is required. In Spain in this context, children are defined as those under 14
• ‘The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means’ (Art. 12.1 GDPR)
• The full GDPR rules relating to children are set out under the earlier Online Commercial Communications section. The definitive consent guidance is here; see section 7.1 for children’s references
• Child-prohibited sectors such as alcohol and gambling are obviously prohibited from sending any commercial communications to children

SECTION C: DIRECT POSTAL MAIL

• Rules set out in our earlier content section B apply to Direct Mail, except those rules that identify either broadcast or digital channels. The principal source of content rules is the Autocontrol Code of Advertising Practice (EN)
• Direct Postal Mail in most countries, Spain included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications; Robinson lists or equivalent must be reviewed before distribution

• MAIL LEGISLATION: Article 13 (D) of Royal Decree 1829/1999 (ES) on DM commercial communications
• DATA PROCESSING: Lawful processing rules from the GDPR may be applicable. Privacy issues should be reviewed with specialist advisors. The Data Protection Act 15/1999, now repealed, permitted the obtaining and deployment of publicly available data, provided that the data subject did not object to processing and that information requirements were fulfilled (Art 45 (1a) RLOPD; Art 30 (1) LOPD). It is not entirely clear whether this exemption continues to apply in light of the GDPR. The AEPD, Spain’s data protection authority, address the issue in a FAQ here (ES)
• CONSUMER PROTECTION: RLD1/2007 (EN key clauses inc. 2022 amends; ES) General Consumer and User Protection Act provides for opt-out and requires clear identification of commercial content; see article 96 Distance Commercial Communications, only available in full ES version, some clauses below; article 20 carries information requirements for an ‘invitation to purchase’ (often part of DPM) and can be seen in the EN link 

………………………………………..

Data processing in advertising activities (EN). From Autocontrol September 2022, approved by the data protection authority AEPD. Applicable Spanish version here

SECTION C: DIRECT POSTAL MAIL

Applicable Self-regulation and legislation 

​

• 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 marketing communication rules that are specific to sponsorship of children's events or associated field marketing activity, though clearly advertisers from child-sensitive sectors such as gambling and alcohol will need to avoid events where there is or might be a significant proportion of children (guidance from most authorities is 25% or more of the audience)
• Associated promotional material should observe the rules set out in our content section B, together with the content rules shown under the General tab in section B; the principal source of rules is the Autocontrol Code of Advertising Practice (EN)
• The channel (i.e placement) rules that apply to all product categories and audiences shown under the General tab below also apply; see bullet point below in particular 
• The general sponsorship rules, i.e. those that apply to all categories, can be found under Chapter B of the ICC Advertising and Marketing Communications Code (EN); rules are spelt out under the General tab below or can be found in the linked document. These are not per se binding in Spain, but they represent a solid foundation of sponsorship rules, albeit in this context carrying no child-specific requirements

The PEGI Code is here; see Article 11 Advertising and Promotion. There are separate PEGI Labelling and Advertising Guidelines which detail requirements by medium; check with PEGI

Toys/ online sponsorship. Article 60+ of the 2022 AEFJ Toys Code (EN). Sponsorship is within the scope of the code

​

SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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• Promotional material that supports sponsorships will be subject to the content rules set out in our earlier section B; principal source of content rules is the Autocontrol Code of Advertising Practice (EN)
• There are no general rules from Autocontrol that apply specifically to the sponsorship of events or other ‘Field Marketing’ activities
• The European Sponsorship Association ESA, code of conduct here, require that members abide by the ICC Advertising and Marketing Communications Code (EN), which sets out sponsorship rules in its Chapter B. Key clauses below 

​

• 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

• 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

• 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

• 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

• Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
• The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them

• The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
• This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

• If personal data is used in connection with sponsorship, the provisions of article 19 are applicable

SECTION C: EVENTS/ SPONSORSHIP

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

• 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 around pricing, for example, are checked for any provisions that affect SP and included below, in most cases under the General tab

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

• Promotional material should observe the Content rules - both the Children-specific rules and the General rules - set out in the earlier Content Section B; principal source of rules in this context is the Autocontrol Code of Advertising Practice (EN)
• As, by definition, promotional marketing can be more 'urgent', note that legislation in the form of Law 3/1991 on Unfair Competition (EN key clauses inc. 2022 amends) article 30 prohibits ‘Inclusion in an advertisement of a direct exhortation to children to purchase goods or use services or to persuade their parents or other adults to acquire the advertised goods or services shall be deemed aggressive and hence unfair.’
• There are price-related provisions in the above linked law, article 22 especially, that will also be relevant in this context. As the rules apply to all product categories and audiences, children included, they are shown under the General tab below

2022 Code of Self-Regulation for Toys advertising aimed at children EN

See Section IX in particular: Promotions, Draws, Competitions and Children’s Clubs

And Section XIII article 56 re offers online, in as much as those are allowed ​

PAOS code EN

Special offers, draws, competitions and children’s clubs. Section X, Arts. 18-21

Note: Carrying out promotions including, among others, prizes, draws, competitions, discounts, free gifts, etc., is a marketing tool which has the capacity to increase the attractiveness of a product. Therefore, special attention must be paid to the advertising of these techniques in audiovisual and printed media, in order to protect children under 12 years of age from being exploited due to their immaturity

• Any advertising including a special offer shall be designed in such a way that, in addition to transmitting the message relative to the promotional incentive, it should clearly show the product advertised (Art. 18)
• The essential conditions of the special offers in audiovisual and printed media must be clearly and easily expressed in the advertisement, in such a way that they shall be easily legible and understandable by children under 12 years of age, or on the Internet by children under 15 years of age (Art. 19)
• Advertising draws included in advertisements for food products or beverages in audiovisual and printed media directed to children under 12 years of age or directed to children under 15 years of age on the Internet, shall not generate unreal expectations as to the possibilities of winning or as to the prize which may be obtained. Therefore:

1. Prizes must be clearly indicated
2. Being misleading as to the possibilities of winning should be avoided
3. The prizes awarded must be appropriate to the underage audience
   (Art. 20)

• In order to avoid misleading children under 12 years of age, reference to children’s clubs during the advertising of food products or beverages may only be made if the following requirements are met:

1. Interactivity: The minor must carry out some act implying intentional incorporation to the club and must receive something in exchange
2. Continuity: A continuous relationship must exist between the club and the child member, for example through informative leaflets or regular activities
3. Exclusivity: The activities or advantages derived from belonging to a club must be exclusive to its members and not merely available as a result of purchasing a specific product
   (Art. 21)

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. In the case of Spain, however, we have included extensive provisions from the Retail Trade Act, as well as national self-regulatory codes and consumer protection legislation around pricing, for example. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal. As promotional advertising/ communications might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be reviewed by specialist advisors

1. APPLICABLE RULES 

1.1. Legislation

1.2. Self-regulation in promotions

1.3. Guidance

2. PROMOTIONAL FORMS 

2.1. Promotion of sales with free gifts

2.2. Information requirements

2.3. Promotion of sales with a free gift or bonus/ premium

2.4. Online advertising of promotional offers and games/ competitions

2.5. Skill-based and prize draws

2.6. Free-prize draws/ sweepstakes

2.7.  Paid-entry sweepstakes, games and raffles

2.8. Competitions and contests

2.9. Other requirements

3. HORIZONTAL LEGISLATION 

3.1. Misleading Advertising by omission of material information

3.2. ‘Bait’ advertising and misleading promotional practices

4. LEGAL BASES (rules of the promotion)

5. SOCIAL NETWORKS 

6. SELF-REGULATION IN PROMOTIONS 

6.1. Autocontrol Code of Advertising Practice

6.2. ICC Advertising and Marketing Communications Code