SECTION C: TV & RADIO/ AV

Seven and Nine breach gambling advertising rules. ACMA October 2022

• Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable. The Australian Consumer Law also applies;
• The Commercial Television Industry Code of Practic (2018). Television advertisers are expected to ensure that advertisements (or other marketing communications) comply with the AANA codes and the ABAC Responsible Alcohol Marketing Code (5.7);
• Section 4 covers disclosure of commercial arrangements, e.g. products in 'factual programs'; section 6 covers scheduling restrictions for alcoholic drinks (6.2), intimate products and services (6.3), films and computer games (6.4) and betting and gambling (6.5); these are all restricted according to 'Classification zones' set out under section 2, e.g. material that has been classified M may only be broadcast at the following times

• Commercial Radio Code of Practice  March 2017;
• The Children’s Television Standards 2009 'made under subsection 122 (1) of the Broadcasting Services Act 1992'; compilation December 2014, refers to ad scheduling and content restrictions under CTS 26 through 36;
• Broadcasting Services (Australian Content in Advertising) Standard 2018.  'A licensee must ensure that at least 80% of the total advertising time (other than the time occupied by exempt advertisements) broadcast in a year by the licensee, between the hours of 6 a.m. and midnight, is occupied by Australian produced advertisements.​ (PART 2)
• The regulator is the Australian Communications and Media Authority (ACMA)

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

​

SECTION C: CINEMA, PRINT, OUTDOOR

• Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
• In Outdoor media, the association requires in its alcohol advertising policy that 'advertising that is captured by this policy is not placed on fixed signs located within a 150 metre sightline from the boundary of a school.' Access to the rules here and pdf here. The association also publish a 'general' Code of Ethics;
• The Cinema trade association is the National Association of Cinerma Operators (NACO); we couldn't trace any codes/ rules related to commercial communications on their website. 

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 carries the rules for marketing communications in the broader online space.

More specific channels such as direct electronic communications, advertisers' own websites, native etc. follow.

• Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
• With regard to data processing, The Privacy Act 1988 (compilation including act no. 83) is the principal piece of Australian legislation protecting the handling of personal and sensitive information about individuals;
• The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collection, use and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);
• Marketing in the Digital Space, the AANA Practice Note March 2018, states: 'The AANA Codes are platform and media neutral and apply to existing digital media. It is envisaged that the Codes will apply to any future form of digital marketing that may be developed and that the Codes will evolve, if necessary, to remain relevant and applicable.' We've read this document with some care; in our view it's a very valuable helping hand for staying the right side of the rules in digital marketing in Australia.

ACCC Digital Platforms Report #6 - Influencer Sweep Report

• The key self-regulatory rule, established relatively recently, is from the AANA Code of Ethics 2.7 'Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience.' The related Best Practice Guideline is essential reading, together with the Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021;
• The Australian Consumer Law is also relevant to Influencer Marketing under article 29 false or misleading representations. The ACCC - statutory authority in this context - state: 'The same rules that apply to all advertising and promotions apply to social media, including: a business’s posts on its own social media accounts, advertising on other social media platforms, social media posts that a business pays for, social media posts that a business offers incentives to influencers to make.' 
• The codes of practice and guidelines from the AANA and AIMCO carry recommendations on when a post constitutes an ad and how to declare/ identify it. From the latter under section 2.1:

• 'The AANA current recommended advertising disclosure is in line with the UK and US to declare advertising, with words or hashtags #Ad or #Sponsored in relevant platforms or identified verbally in video formats.' That may be the case but may also be a slightly 'tighter' interpretation of the AANA's Code of Ethics Practice Note, which reads under section 2.7:
• 'Influencer and affiliate marketing often appears alongside organic/genuine user generated content and is often less obvious to the audience. Where an influencer or affiliate accepts payment of money or free products or services from a brand in exchange for them to promote that brand’s products or services, the relationship must be clear, obvious and upfront to the audience and expressed in a way that is easily understood (e.g. #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion). Less clear labels such as #sp, Spon, gifted, Affiliate, Collab, thanks to… or merely mentioning the brand name may not be sufficient to clearly distinguish the post as advertising.'

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Meta and self-regulation December 2023 

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

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

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

Logan & partners/ Mondaq November 28, 2023

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

• Directive 2000/31/EC on electronic commerce

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

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

Also be aware of:

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

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

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

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

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

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

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

C1. Identification and transparency

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

C2. Identity of the marketer

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

SECTION C: COOKIES AND OBA

• There is some uncertainty in the Australian legal community about the definition of personal information and the means of its permitted collection, and in some ways the consent regime is more 'relaxed' than in other jurisdictions: see Comparing privacy laws: GDPR v. Australian Privacy Act from Onetrust data guidance and Mills Oakley;
• The applicable legislation is The Privacy Act 1988 (link is to compilation including act no. 83 December 2022) and under Schedule 1 of the act the Australian Privacy Principles (APPs; full principles linked, quick reference here). In this cookies and OBA context, the key APPs are 3-5 for Collection and APP 7 Direct Marketing, guidelines to that chapter here. Extracted from APP 7.2: 'an organisation may use or disclose personal information (other than sensitive information, terms defined here) about an individual for the purpose of direct marketing if:

• the organisation collected the information from the individual;
• and the individual would reasonably expect the organisation to use or disclose the information for that purpose;
• and the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation;
• and the individual has not made such a request to the organisation.'

• The Bird&Bird Global Cookie Review of Winter 2022 includes Australia and very helpful content around consent/ personal information; the review precedes 2022 amends to the Privacy Act. From that review: 'There are no specific cookie-related laws in force in Australia. However, entities subject to the Australian Privacy Act must handle personal information in accordance with the Australian Privacy Principles (APPs). “Personal information” is defined under the Australian Privacy Act as information or an opinion about an identified individual or an individual who is reasonably identifiable.'
• The relevant authority is the Office of the Australian Information Commissioner (OAIC), 'the independent national regulator for privacy and freedom of information.'

​

• See above for data collection/ processing (or 'use') issues related to targeted advertising. The OAIC publish a page on Targeted advertising, written for the consumer, which provides a link to Youronlinechoices, the EU-based system supported by a number of organisations;
• Advertising in all media must observe the rules and interpretations set out in our preceding content section B, except where offline-specific; OBA/ targeted advertising is the same as any other advertising in that sense; principal source of content rules is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies. 

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

This section covers rules for 'direct electronic communications', per the header. By this we mean that we are addressing a particular form of 'direct marketing' and because that term can cover a wide variety of techniques, we define and qualify it. From the OAIC guidelines 7.9 'Direct marketing involves the use and/ or disclosure of personal information to communicate directly with an individual to promote goods and services. A direct marketer may communicate with an individual through a variety of channels, including telephone, SMS, mail, email and online advertising.' The 'electronic' descriptor in this section is intended to separate from e.g. postal mail and the direct marketing element relates to the targeting of individuals and therefore - in some cases - personal information processing. So when setting out the applicable rules, the two core principles that determine their relevance and inclusion are a) whether targeting is 'individual' and personal information may be processed and b) whether delivery to the consumer is electronically. To make those principles perhaps more meaningful, we have in mind email and SMS delivery, for example, though we realise that 'direct electronic communications' may encompass e.g. OBA and even 'broader' channels, which are anyway addressed in separate sections. We also appreciate that much 'direct marketing' may not include processing of personal data. 

Privacy issues should be reviewed with specialist advisors 

• Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies; 
• So the content of commercial communication will be subject to the rules from the above (exemptions such as press releases are set out in the linked documents); whether data processing rules apply obviously depends on the type of data and how it's being used. The Australian privacy regime in this context is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.' 
• There are thirteen APPS, of which the most important in this direct marketing context is APP 7. The terms and rules differ slightly from e.g. the European regime in as much as the term 'personal information' is used (vs personal data) and there is a further distinction between personal information Definition Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not and 'sensitive information', which includes information on e.g. racial origin, sexual orientation, political affiliations, religious beliefs etc. Full definitions of these terms are extracted here; 
• The rules taken from APP 7 permit 'use or disclosure of personal information (other than sensitive information) about an individual for the purpose of direct marketing if: the organisation collected the information from the individual; and the individual would reasonably expect the organisation to use or disclose the information for that purpose; and the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and the individual has not made such a request to the organisation.'
• Further exemptions (i.e. permissions to use or disclose personal information) are under section 7.3. These clauses are quite intricate and should be read in full, probably with a specialist advisor to hand, but boil down to: if there is not a 'reasonable expectation' of use or the information is from a third party, use/ disclosure is permitted when consent has been obtained, or if that is impracticable and the organisation provides a simple and 'prominent' means in each communication to opt out;
• The Spam Act 2003 requires that i) Unsolicited commercial electronic messages must not be sent, ii) Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message and iii) Commercial electronic messages must contain a functional unsubscribe facility (Part 2).

​

• Use/ disclosure of sensitive information, as defined above, is subject to the individual's consent: 'an organisation may use or disclose sensitive information about an individual for the purpose of direct marketing if the individual has consented to the use or disclosure of the information for that purpose.' (7.4)
• See also AIOC Guidance on Direct Marketing May 2019, essential reading which provides guidance on e.g. 'reasonable expectation' and opting out. Additionally and importantly, 'consent' is discussed:  '7.23 Consent is defined in s 6 (1) as ‘express consent or implied consent’ and is discussed generally in Chapter B (Key concepts). The four key elements of consent are: the individual is adequately informed before giving consent, the individual gives consent voluntarily, the consent is current and specific, and the individual has the capacity to understand and communicate their consent';

• https://www.adma.com.au/about: 'The Association for Data-driven Marketing and Advertising (ADMA) is the principal industry body for data-driven marketing and advertising.  The largest marketing and advertising association in Australia, ADMA represents over 600 brands.' Their regulatory pages are here

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 owner is advertising, it's in remit. The AANA Practice Note March 2018 Marketing in the Digital Space states: 'Examples of digital marketing include all forms of commercial communication on Brand-owned websites or brand-managed social media pages (including mobile and tablet versions), including 3rd party user-generated comment (UGC)’ Advertising is defined as.......any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct. It does not include Excluded Labels or packaging for products, corporate reports including corporate public affairs messages  in press releases and other media statements, annual reports, statements on matters of public policy Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, see the Practice Note linked above. Notable exceptions include Material, includinmg UGC, over which the brand owner does not have reasonable control, even if brands or products of the brand owner are featured. Corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy and the like are also excluded 

Privacy issues should be reviewed with specialist advisors 

• Advertising in all media, including owned (see above context) must observe the rules and interpretations set out in our preceding content section B except where identified as offline-specific; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies; 
• The AANA Practice Note March 2018 Marketing in the Digital Space linked above is very helpful for marketers and agencies navigating regulation in the digital space generally and the various forms of, and content in, owned websites specifically; 
• Data processing issues obviously arise in this owned website context.The Australian privacy regime is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.'
• Direct marketing/ privacy rules, taken from APP 7 and related guidelines, are set out under the preceding header 'Direct Electronic Communications.' The rules are primarily about the use of personal and sensitive information. Collection of solicited and unsolicited personal information is covered by APPs 3, 4 and 5 and the OAIC guidelines. Very broadly (privacy issues should be reviewed with specialist advisors), collection of personal information is permitted when that is reasonably necessary for one or more of its functions or activities (APP 3.2); collection of sensitive information (terms are defined here) requires consent;
• See  also the cookies and OBA section of this database, earlier in this channel section C. Bird&Bird's Global Cookies Review Winter 2022 is also very valuable; Australia p.56.

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

• Section 2.7 of the AANA Code of Ethics requires that advertising must be clearly distinguishable as such. The related Practice Note (link is to the relevant page) sets out interpretation in some detail. The most relevant paragraphs, though the full interpretation should be read, are:
• 'There is no absolute requirement that advertising or marketing communication must have a label however it must be clear to the audience. If it is clear to the audience that the content is commercial in nature (for example by the nature of the content, where the content is placed, how consumers are directed to the content, the theme, visuals and language used, or the use of brand names or logos), then no further disclosure or distinguishing element is needed. And:
• 'Advertisers have flexibility as to how to ensure that material is distinguishable as advertising or marketing communication. Advertisers may use logos or brand names combined with other visual or audio cues where appropriate, such as background shading, outlines, borders, graphics, video or audio messages depending on the medium.'
• Native advertising is the same as any other advertising in as much as its content must observe the rules and interpretations in the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies.

​

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 

SECTION C: DIRECT POSTAL MAIL

There are two aspects to the way in which we address this section: 1) the collection and use of personal and sensitive information (these terms defined here) when processing data and 2) the content of commercial communications in direct postal mail. Rules, or access to them, are set out below

• Whether data processing rules apply obviously depends on the type of data and how it's being collected and used. The Australian privacy regime in this context is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.' 
• There are thirteen APPS, of which the most important in a direct marketing context is APP 7. The terms and rules differ slightly from e.g. the European regime in as much as the term 'personal information' is used (vs personal data) and there is a further distinction between personal information Definition Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not and 'sensitive information', which includes information on e.g. racial origin, sexual orientation, political affiliations, religious beliefs etc. Full definitions of these terms are extracted here; 

• 'Marketing is not direct, and therefore APP 7.1 does not apply, if personal information is not used or disclosed to identify or target particular recipients, for example, where: an organisation sends catalogues by mail to all mailing addresses in a particular location, addressed ‘To the householder’ (that is, where recipients are not selected on the basis of personal information) an organisation hand delivers promotional flyers to the mailboxes of local residents' (Guidelines 7.12);

• Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
• The latter especially carries some rules related to pricing and e.g 'bait advertising' which may be particularly relevant to direct postal mail; see content section B for details or the linked law

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

This section covers rules related to sponsorship of events (versus media) 

Wear the cap or don’t wear the cap? A timely reminder to ensure that your sponsorship rights & obligations are clear
Kalus Kenny Intelex March 19, 2024

• The scope of the AANA Code of Ethics (February 2021) is stated as: 'In this Code, unless the context otherwise requires: Advertising means: (a) any advertising, marketing communication or material which is published or broadcast using any Medium or any activity (italics ours) which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct, (b) but does not include: labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy, in the case of broadcast media, any material which promotes a program or programs to be broadcast on that same channel, station or network. And:
• Medium means any medium whatsoever including without limitation cinema, internet, outdoor media, print, radio, telecommunications, television or other direct-to-consumer media including new and emerging technologies.
• We take the above to mean that sponsorship is in the code's remit; accordingly, collateral material, i.e. support material around a sponsorship event, should observe the code and any related sector-specific codes (see section A - Overview - of this database) and it is likely to be the case that the Australian Consumer Law will also apply, albeit there won't be a great deal of legal activity in the sponsorship material business;
• The best source of 'general' international rules are those from the ICC Advertising and Marketing Communications Code Chapter B, which covers e.g. ambushing, data capture etc. The clauses are spelt out under the International section, or see the linked code
• It would obviously be the case that sector-sensitive sectors such as alcohol or gambling would need to avoid events where there is a relatively high proportion of minors in attendance (most guidance suggests > 25%); there is some sensitivity around sponsorship of events by gambling operators in particular;
• From the Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018 S1.5. Signatories must not give away food and/ or beverage products or vouchers to children as awards or prizes at children's sporting events unless those products meet the nutrition criteria;
• The Exhibition and Event Association of Australasia (EEAA) is 'the peak association for the exhibition and event industry in Australia and New Zealand, representing all aspects of the exhibition and event industry.' http://www.eeaa.com.au/

• There's a Sponsorship Q&A: Australia blog/ post from Practical Law which looks like it requires subscribed downloads. Sponsorhip News is helpful generally, albeit also requiring subscription for some services.

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

• Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable. Sales promotions - when expressed in advertising -  will remain subject to the codes of practice as well as additional rules (some promotions, for example, transgress because they are misleading)
• The Australian Consumer Law also applies and that legislation is an important source of promotional rules: Bait advertising and special offers are under ACL section 35 and Offering rebates, gifts or redemptions under section 32;
• The ACCC (Australian Competition and Consumer Commission) carries some helpful Advertising, selling and promotional techniques pages which set out a summary of the rules, link the relevant legislation and show examples and some case law. For example on Bait advertising and special offers: 'Bait advertising is the practice of offering items for sale at low prices to attract consumers to a business. Bait advertising can be a legitimate form of advertising. However, it is illegal to engage in this conduct where goods or services are advertised for sale at a discounted price, and they are not available in reasonable quantities and for a reasonable period at that price. Legislation: Australian Consumer Law section 35 .You must state clearly if the good is in short supply or on sale for a limited time. For example, if your advertisement makes it very clear that goods are available at the discount price for ‘today only’, this will limit your obligations to that day. If there is not a reasonable chance the offer will be available at the advertised price, you may be in breach of the ACL unless you promptly offer a 'rain check', an acceptable substitute product or take other corrective action;

• The ACCC's Cash back offers and gifts and prizes rules are here.​

What Permit Do I Need To Run A Promotion In Australia?

Sales promotions Q&A: Australia (needs sub)

SECTION C: SALES PROMOTIONS

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B.

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

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

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

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

ICC Code Chapter A Sales Promotion 

A1: Principles governing sales promotions

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