Advertisement in Spain can be achieved in several indirect ways, each of which is regulated by different laws.
Editorial advertising is set out in Article 9 of the General Advertising Law. This law requires that mass media clearly differentiate advertising from informative material. Article 17 of Law 7/2010 of 31 March 2010 regulates another type of advertisement called product placement. This law, in brief, states that the advertisement should be easily identifiable and portray a clear difference between optical and acoustic programs, or both. Lastly, there is an advertisement technique called subliminal advertising. The term “subliminal advertising” is explicitly defined in Article 3c of the General Advertising Law as advertising in which the message is so brief that it is not normally perceived as such by the human senses. Subliminal advertising is presumably illegal advertising.
Just as there are indirect advertising techniques, there are also several techniques that are classified under the term direct marketing.
The General Advertising Law gives a definition of advertisement and each city in Spain applies its own local laws, which contain criteria that must be applied. Law 29/2009 of 30 September 2009, or The Act of Unfair Competition and Illegal Advertising, governs telephone advertising. The law defines telephone advertising, in Article 29, as an aggressive practice offering unwanted and repeated proposals by telephone, fax, e-mail and other distance communication media. Similar to this type of advertising is fax, e-mail and SMS — advertising. The law on spam through these means derives from Articles 21 and 22 of Law 34/2002 of 11 July 2002. Article 21 specifically prohibits the sending of advertising or promotional communications by e-mail or any other means of electronic communication (including SMS, MMS, and fax) that the recipient in question has not previously requested or expressly authorized. An exception to this prohibition is found in Article 22, where there is a pre-existing contractual relationship and all of the following apply:
- The contact details of the recipient have been obtained lawfully
- The messages sent relate to products or services and have a relation to those products and/or services that the recipient purchases
- The same entity sends all the messages.
There are two types of mail advertising: direct mail advertising and mail unordered merchandise. Article 13(D) of Royal Decree 1829/1999 of 3 December 1999, which regulates direct mail advertising, sets out several requirements that advertisements sent by direct mail must adhere to. Law 7/1996 of 15 January 1996 oversees mail unordered merchandise and prohibits the sending of articles or goods to consumers who have not ordered said goods.
One type of advertising that is somewhat relatable to mail advertising is door-to-door advertising and selling. However, no law in particular appears to regulate door-to-door advertising and selling. Local governments may nonetheless restrict these activities. Law 22/2007 of 11 July 2007 governs the law on distance marketing, which is a product ordered and delivered by mail only. The main objective of this statute is the protection of consumers.
A different type of advertising is the snowball system, also known as progressive customer advertising. There appears to be no specific law that regulates progressive customer advertising. However, Article 4.7 of Royal Decree 1907/1996 prohibits the advertising of health products by real/perceived patients or famous people. In regards to blogging, it seems to be breaking the rules if a blogger advertises products in a sly manner. This example demonstrates that there is some sort of prohibition on customer-to-customer advertising, although, it has not been stated in an official law. Thus, this type of advertising is subject to challenge only when it constitutes fraud under civil or criminal law. In the case of civil law claims, deceived victims must establish the amount of care they acted under.
The last type of direct advertising is outdoor advertising (e.g. billboards etc.), which requires permission of the locality concerned — thus, local laws govern.
In conclusion, there is no one law in specific that governs advertising in Spain. Direct marketing as well as indirect advertising are overseen through several types of legislation. Companies should therefore be aware of the advertising techniques they use in order to comply with the applicable law.
Justine Matthys & Karl H. Lincke
This article is not considered as legal advice