В статье рассматриваются вопросы, связанные с правовым регулированием интернет-рекламы в Украине. Особое внимание автор посвящает регулированию отношений по поводу интернет-рекламы в Европейском Союзе и США. В отличие от этих стран, где интернет-реклама является предметом специального регулирования, в Украине такие отношения регулируются общими положениями о рекламной деятельности, закрепленными в Законе “О рекламе” от 3 июля 1996 года и другом законодательстве.
Having appeared in the early 1990s of the past century, online advertising has become a lucrative business in the space of a decade. Putting it on legal track was another challenge among others introduced by developing IT technologies. The diversity of forms of online ads makes the challenge even greater. However, in the developed countries, this battle is fought successfully and the phenomenon is now largely regulated.
What is at stake? The scope of the Ukrainian online advertising market was UAH 680 million in 2012 and UAH 1,060 billion in 2013, with year-on-year growth coming to 35%. Considering that online advertising ensures better returns on investment than in other media, the speed of increase in coming years is likely to remain at the same level.
So far, Ukrainian law does not provide for the specific legal framework of online advertising. It is possibly, the market growth results from this accidental flexibility. Arguably, the legislator will pay attention to this market in the nearest future and will try to make a frame for it. Looks like bad news for market participants. The good news, however, is that the problem is not new. The USA and the EU have been dealing with it for some time and their valuable experience can be used in Ukraine. Ironic as it may seem in Ukraine, upon the implementation of the EU Ecommerce Directive dealing with online advertising, the relevant European market started experiencing a rapid grow1. Fortunately, the forms of online advertising and the mechanisms of the Internet network do not have national specifics. Therefore, the existing practice of legal regulation can be easily implemented in Ukraine.
However, firstly, let us look at the current Ukrainian legal “tools” applicable to online advertising. Any lawyer would start with a notion. The Advertising Act does not specifically define the Internet-related or online advertising. Instead, the general definition of advertising is quite encompassing, it consists of information about a person or a product, which is distributed in any form and by any means, aimed at forming and maintaining awareness of consumers of and their interest in such a person or product. Based on this definition, it appears that the Internet is a means of ads distribution. The form of online advertising can be generalized as electronic, which in its turn is available on the Internet and through communication devices. Thus, the existing definition of advertising is fully applicable to online advertising, which can be defined as a marketing tool using the Internet in order to deliver information about a person or a product to a consumer. In this article we will focus on the B2C aspect, and namely on the consumption of an online ad by an Internet user (Consumer).
Where does one actually consume an online ad? The immediate answer is, naturally, online. Leaving aside all technical details of how an online ad reaches a Consumer, let us see where the Consumer must be located in order to become regulated by Ukrainian laws. The Advertising Act regulates the production, distribution and consumption of advertising “in the territory of Ukraine”2. A Consumer can be defined as a person at whom an online ad is targeted and who uses the information provided by or with the help of an online advert. Considering that the receipt of online advertising is regulated by Ukrainian advertising and consumer protection laws, the protection can be claimed only if a Consumer is located in Ukraine while “consuming” an online ad as a result of surfing on the Internet.
This position is supported by provisions of the International Private Law Act3 imposing the protection of a Consumer by the mandatory law of the State of his residence, presence or location, provided that prior to concluding an agreement the ad was distributed and the Consumer made all preparatory actions for entry into the agreement in this State. In other words, if a Consumer staying in Ukraine became persuaded by an online ad that he received in Ukraine and thus bought a product online (concluded a sales and purchase agreement), the mandatory provisions of Ukrainian consumer protection laws will be applicable.
1 According to the report available at http://ec.europa.eu/internal_market/e-commerce/docs/study/ecd/%20final%20 report_070907.pdf
| 2 Artice 2. 3 Article 45. 4 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. |
We consider that a Consumer can be protected from undue advertising in Ukraine only if the compliance of such advertising is based on Ukrainian advertising law. There is no doubt that the consumption of an online ad is the final and core stage, followed or not by purchase (monetizing of efforts for production and distribution of such an ad). Under the logic of the consumer protection law, we eventually deduced that in case a person located at the given moment in Ukraine “consumes” an online ad, such an ad must comply with the general provisions of Ukrainian advertising laws.
We note that some provisions of the Advertising Act refer to online ads, such as ban of alcohol and tobacco products advertising (i) in IP or online television and other means of signal transmission or (ii) in the Internet, except for the web-sites access to which is preconditioned by the identification of the age of an Internet user. This ban may seem a repeated regulation, which makes little sense. However, taking into account the socially sensitive object of the prohibition, we conclude that it was intentionally emphasized in order to leave no room for legal interpretations.
Thus, we take the position that these express provisions yield the first fruit, indicating that the Advertising Act will be gradually amended to regulate online advertising in Ukraine more specifically. No perfect solution has been found yet for legal regulation of online advertising. However, there are a few good examples to follow. Let us see how the EU Ecommerce Directive4 deals with this challenge.
Online advertising falls within the scope of the information society services, defined as any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including the digital compression) and storage of data at the individual request of a service recipient. Such services are, in principle, subject to the law (either specific or general) of the Member State in which the service provider (legal or natural person) is established or performs relevant actions (law of origin). In particular, requirements of the content of the ad (production of online ad) are regulated by the law of origin. In tum, the Member State in which the information society service is received cannot restrict incoming services.
The online ad is called “commercial communication”, defined as any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organization or person pursuing a commercial, industrial or craft activity or exercising a regulated profession. The notion of the online ad determined as “communication” rather than “information” is optimal to indicate the specific nature of online advertising.
The EU Ecommerce Directive establishes a number of requirements of commercial communication: it shall be clearly identifiable as an ad; the advertiser must be identifiable; promotional offers must contain all terms of participation. We noted that the first and third criteria already exist in Ukrainian legislation. E-mail spamming is specifically regulated: (i) its nature must be clear from the subject so that the Internet user do not open it in order to discover the content and (ii) the possibility to unsubscribe (opt-out) must be ensured.
The self-regulation of the online advertising which takes the forms of industry standards or codes of conduct can be considered as an alternative or a supplement to the statutory regulation. For example, several US advertising industry organizations elaborated Self-Regulatory Principles for Online Behavioral Advertising, a similar document has been prepared by the European advertising associations, and the UK Advertising Standards Authority published the Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code). In addition, the International Chamber of Commerce has issued the ICC International Code of Advertising Practice and of Direct Marketing.
To sum up, online advertising in Ukraine is being regulated by general provisions applicable to advertising, whereas adoption of more specific legal acts is expected in the next few years. Hopefully, such specific laws will be balanced and ensure comfort to the advertisers, thus allowing the online advertising market to grow steadily.
UKRAINIAN LAW does NOT PROVIDE for the SPECIFIC LEGAL FRAMEWORK of ONLINE ADVERTISING
Автор:
Olena A. VARDAMATSKA
Источник:
The Ukrainian Journal of Business Law. – 2014. – № 4. – Р. 22 – 23.