30. 11. 2014
ANEM CONTRIBUTION TO ADVERTISING LAW DRAFTING
Bearing in mind that the Law on Electronic Media, adopted in August 2014, regulates the issue of audio-visual commercial communication,namely the advertising rules pertaining to electronic media, while the Advertising Law has been in force simultaneously, and that there are significant discrepancies in certain solutions between the two laws, ANEM submitted its recommendations for drafting the Advertising Law to the Working Group for drafting the new Advertising Law of the Ministry of Trade, Tourism and Telecommunications. ANEM finds it necessary that the two laws be harmonized and that the Advertising Law establishes general legal regime for advertising by prescribing general principles and bans, as well as that it establishes general monitoring procedure to be implemented to all forms of advertising, regardless of the platform used for distribution of advertising messages.
In its letter ANEM first stated key rules of the Law on Electronic Media pertaining to audio-visual commercial communication. It did so in order to contribute to a better insight by the Working Group members into the new legal regime in this domain and to contribute to improving the definition of the problems (what audio-visual commercial communication comprises; the key principles of audio-visual commercial communication; what should be done in the domain of sponsorship; under which legal conditions product placement, formerly banned, is now exceptionally allowed; what the prescribed rules are for TV advertising and TV sales; media responsibility for the content of advertising message; the relation between the Law on Electronic Media and the Advertising Law; who should adopt bylaws in this domain).
Along with this, ANEM provided a set of recommendations:
1. Misleading and comparative advertising
It is necessary to fully recognize the EU regulation pertaining to advertising, particularly Directive 2006/114 of the European Parliament and the Council of 12 December 2006 concerning Misleading and Comparative Advertising - in accordance with the Directive, conditions should be made precise under which comparative advertising is allowed, and what is considered misleading advertising; adequate sanctions should be envisaged for violation of these rules.
2. Defining the Law on Advertising as general in relation to the Law on Electronic Media
The Advertising Law should contain a precise provision stating that the Advertising Law is equally applied to advertising in electronic media, unless differently prescribed by the Law on Electronic Media.
3. Preventing and removing discrepancies between the Advertising Law and the Law on Electronic Media
The relation between the two laws must be set in such a manner that they do not contain conflicting legal provisions that could cause problems in practice. Therefore, ANEM proposed specific solutions for advertising of certain products: more liberal advertising of alcoholic beverages that would be valid for all platforms for distribution of advertising messages, and the introduction of two regimes - for alcoholic beverages with lower percentage of alcohol and those with a high percentage of alcohol (a more restrictive regime); unchanged regime of advertising cigarettes, where the status of advertising electronic cigarettes should be made more precise; unchanged regime of advertising other products that have been subject to a regime of restrictions (such as medication, weapons, pornographic content), with clear indication as to the laws that regulate these issues.
4. Defining the terms "minor" and "child"
The Advertising Law should clearly define the categories of "minor" and "child", i.e. their age, considering that the Law on Electronic Media uses these terms inconsistently while prescribing numerous obligations of electronic media aimed at protection of minors, particularly in the context of audio-visual commercial communication.
5. Specifying responsibility of all participants in the chain of creating and distributing advertising messages
The Law on Electronic Media, inter alia, prescribes subjective responsibility of electronic media with regard to the content of advertising message. Therefore, the Advertising Law should define (and do so precisely) the responsibility of other participants in the chain of an advertising message in order to avoid the situation where the media would bear all the consequences of possible illegal content of an advertising message.
6. State advertising
State advertising in Serbia has become an important mechanism of political influence on the media, the collapse of competition in the advertising market and the creation of monopoly. On the other hand, due to non-transparent state expenditures for this purpose, it is questionable whether the messages the state wishes to impart in this manner are efficient. It is therefore necessary that the Advertising Law regulates a general framework that would guide the planning, implementation and monitoring of the procurement of advertising space and time for broadcasting program by bodies of public authorities; it is particularly necessary that the Law defines the entity responsible for monitoring the procurement of advertising space and time for broadcasting program by bodies of public authorities, and what means and mechanisms are at disposal of the entity for efficient monitoring.
ANEM Recommendations are available only in Serbian here.
The content of this document is the sole responsibility of the authors and does not necessarily reflect the views of the Embassy of the Kingdom of the Netherlands.
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