‘Advertising is the act or practice of calling public attention to one’s product, service or need’ (dictionary.com). The concept of advertising has evolved from simple postings on a newspaper to complex audio-visual creations, and the platforms which accommodate it are forever multiplying so that virtual advertising, ‘pay per click’ adverts found on the Internet, social media advertising and similar models have taken over the more traditional forms. Indeed, the content of an advert and the manner in which it can be displayed is limited only by the advertiser’s imagination and by law. Various aspects of advertising are controlled by various laws. A number of laws which apply to advertising Europe and specifically in Malta are detailed below.
Persons intending to advertise their services and goods on television or radio stations are regulated through the Broadcasting Act (Chapter 350, Laws of Malta) which addresses matters such as teleshopping and advertisements of products generally. A compendium of additional subsidiary legislation as well as guidelines issued by the Broadcasting Authority in Malta also provide sector-specific regulation for the advertising of medical and nutritional products, advertising of financial services, alcohol and tattoos. By way of illustration:
- Gambling advertisements carry certain restrictions with regard to the hours of the day when they can be advertised, along with such restrictions on messages which relay false information or false hope and that may contravene any gaming laws. Additionally, there are sector-specific codes and laws which further regulate the kind of statements that can be made through advertising which promotes gaming, such as those found under the Code of Conduct on Advertising, Promotions and Inducements, issued by the Malta Gaming Authority.
- Persons intending to advertise medicinal products cannot cause unwarranted fear or exaggerate in their claims through such adverts. These adverts have to include certain notices, such as a notice to read the labels of the products before consuming them.
- Persons advertising financial services and products must follow relevant legal provisions under Maltese law as well as a set of guidelines as to how such adverts are to be produced and what content is to be included. The fact that such adverts cannot mislead its viewer is emphasized, thus keeping in mind the possible inexperienced customer.
- Time restrictions are also imposed on adverts for tattoos and for alcohol, with the latter product having further prohibitions imposed due to the issue of minors and safety.
Teleshopping on Maltese television requires a license from the Broadcasting Authority. Furthermore, regulations exist with regard to teleshopping and advertising spots: in fact, the Broadcasting Authority Act mandates that there cannot be discrimination between particular advertisers. Advertising content must also be recognisable and clearly distinguished from editorial content.
Outdoor Advertising in the Maltese islands is regulated by guidelines pertaining issued by the Malta Environment & Planning Authority (MEPA). Permission for this method of advertising, most commonly in the form of billboards, is required from the said Authority. As per Legal Notice 191/99, advertising on illegal spaces may lead to enforcement action against the parties involved, including the companies choosing to advertise on such space.
Misleading advertising refers to the practice where, through an advertisement, the advertiser deceives its viewers, thus affecting their economic behaviour and consequently harming his competitors. Such a practice is prohibited outright in Europe and in Malta as follows:
- At the business-to-business (B2B) level, the relevant provisions can be found in the Directive on Misleading and Comparative Advertising (Directive 2006/114/EC), transposed into Maltese Law through the Maltese Commercial Code (Chapter 13, Laws of Malta). Traders are generally obliged to deliver goods which conform to the original description given to their customers, thus ensuring that the aforementioned prohibitions are not violated;
- At the business-to-consumer (B2C) level, a misleading advert falls within the category of prohibited unfair commercial practices which may be used by traders to sell their products or services in a manner that may go against the interests of the consumer. The relevant provisions can be found in the Directive on Unfair Commercial Practices (Directive 2005/29/EC), the provisions of which were transposed into Maltese law through the Consumers Affairs Act (Chapter 378 of the Laws of Malta).
Comparative advertising refers to the practice of comparing, within an advertisement, one’s product to that of his competitors. This is permissible within certain limits laid down by the Directive on Misleading and Comparative Advertising (Directive 2006/114/EC), transposed into Maltese Law through the Maltese Commercial Code (Chapter 13, Laws of Malta). These laws state that comparative advertising is only lawful when the advertisement:
- is not misleading;
- compares ‘like with like’, that is, goods and services meeting same needs or intended for the same purpose;
- objectively compares important features of the products or services concerned;
- do not discredit other companies’ trademarks;
- do not create confusion among traders.
Direct marketing is an advert or other marketing communication directed to a particular individual and is regulated by the General Data Protection Regulation (Regulation (EU) 2016/679). The corresponding Maltese legislation on data protection is the Data Protection Act (Chapter 440, Laws of Malta) which states that direct marketing is prohibited unless the recipient has specifically opted to receive such communications. The common image of direct marketing is that of mailshots or telemarketing; however, for the purposes of the Act, it also includes all other means by which you might contact individuals, such as emails and text messages. Lots of people receive ‘junk mail’ that is not addressed to a particular person but to ‘the occupier’. This type of marketing is not directed at an individual and so is not direct marketing for the purposes of the Act. Such mail, posted through every letterbox on a street, includes leaflets like takeaway menus and information about clothing collections. It should be noted that this prohibition does not only refer to the selling of products or services: it includes promoting particular views or campaigns, such as those of a political party or charity.
Advertising in today’s world requires compliance with a large body of legislation, some of which the advertiser may not even be aware of; yet ensuring that an advert is legal is paramount for its success and for the advertiser’s reputation. Equinox can be your guide in this ever-changing complex environment, which constantly challenges legal boundaries. As an expert in the field of advertising, Equinox will help you to find a balance between advertising your services in the best way possible whilst ensuring compliance with the myriad of laws which regulate this activity. Our services include:
- advice on the legal limits of advertising on any platform generally;
- advice in relation to the legality or otherwise of a specific advert;
- advice in relation to compliance with data protection generally, as well as in relation to the client database which may result from a marketing campaign;
- legal advice in relation to social media marketing;
- registering your trademarks and advising in relation to any issue thereto;
- advice in relation to copyright issues which may arise in an advert;
- drafting and/or review of any agreements or terms and conditions relating to an advert;
- drafting of agreements with affiliates;
- applying for any licences necessary and liaising with the Broadcasting Authority, MEPA and any other relevant authority;
- tax treatment of advertising expenses;
- training in relation to compliance with advertising regulation and intellectual property.