Spanish Advertising Law: Prohibitions & Contract Types

Understanding Advertising Regulations and Contracts

Core Principles of Truthful Advertising

Advertising must be veracious (true) and is required to inform the consumer about the qualities of the product or service.

Illegal Advertising Practices in Spain

According to the Spanish Constitution, illegal advertising practices include, but are not limited to:

• Subliminal advertising.
• Comparative advertising that is subjective (and therefore illegal).
• Denigratory or misleading advertising.
• Certain forms of product placement (e.g., undisclosed or misleading product integration in media like films).

Types of Prohibited Publicity

Several types of advertising are specifically prohibited:

Unlawful Advertising (Publicidad Ilícita)

This refers to advertising that violates the dignity of a person or infringes upon constitutional values and rights.

Misleading Advertising (Publicidad Engañosa)

This involves the use of false or misleading statements in advertising. It is considered misleading if it:

• Induces or may mislead its recipients, potentially affecting their economic behavior.
• Prejudices or is capable of injuring a competitor.
• Involves the omission of fundamental data regarding assets, activities, or services when such an omission could mislead the recipients.

Unfair Advertising

This type of advertising:

• Causes discredit, denigration, or contempt towards competitors or their products/services.
• Can cause confusion with other companies, activities, products, or services.
• Includes comparative advertising that does not meet legal requirements for fairness and objectivity.

Subliminal Advertising

This refers to advertising techniques that can affect the audience's subconscious without being consciously perceived.

Legal Framework: Ley 34/1988

These advertising practices are primarily regulated by Ley 34/1988, of November 11, General de Publicidad. This law addresses illicit advertising and outlines actions to ensure its cessation (see Articles 3-8, official text available at www.boe.es).

Key Advertising Contract Types

There are several distinct types of contracts related to advertising activities:

The Advertising Contract

This is an agreement where an advertiser commissions an advertising agency (or a similar entity) to create, prepare, and/or execute specific advertising in exchange for a fixed price or remuneration.

Advertising Distribution Agreement

This is an agreement in which a natural or legal person, in exchange for a fee, undertakes for an advertiser or an advertising agency to prepare, devise, or distribute an advertising campaign or specific advertising elements.

Sponsorship Agreement

This is an agreement where the sponsored party, in exchange for financial aid or other support for the realization of their sporting, charitable, cultural, scientific, or other activities, commits to collaborating in the sponsor's advertising. Key characteristics include:

Key Characteristics of Sponsorships

• Sponsors generally cannot influence the content or scheduling of sponsored radio or television programs.
• Sponsored television programs should not unduly emphasize the sponsor's company, products, or services if these are not the direct subject of the sponsorship.
• The relationship between the sponsor and the sponsored party, including all rights and obligations, shall be governed by the terms stipulated in the contract.

Enforcement of Advertising Regulations

Who addresses cases of publicity that do not comply with regulations? According to Article 6 of the Ley General de Publicidad, the following entities are empowered to act:

• The National Consumer Institute (Instituto Nacional de Consumo) and equivalent regional bodies.
• The Public Prosecutor's Office (Ministerio Fiscal).
• Entities from other European Union member states that are responsible for protecting collective and consumer interests.
• Individuals or legal entities that hold a legitimate right or legal interest affected by non-compliant advertising.