Regulations for Internet Advertising

Advertising Restrictions
Consumer Protection Code
The Child and Adolescent Statute
Election Publicity
Unsolicited Advertising
National Advertising Self-Regulation Council

The Internet is a form of communication that is free of restrictions, as guaranteed in Brazil by the principles enshrined in the 1988 Federal Constitution. However, the Constitution allows the use of federal law to restrict or prohibit certain types of advertising. Some restrictions affect internet advertising.

Advertising Restrictions

Certain commercial advertising is legally restricted, either due to its content or its means of communication. Restrictions are imposed on advertisements for tobacco, alcohol, agricultural herbicides and pesticides, and medicines. Advertisements for these products must contain health warnings.

The regulations that govern the advertising of these products (Law 9,294/96, with new wording introduced by Law 10,167/00) also apply to online advertising. Thus, warnings imposed by the Ministry of Health that appear in printed advertisements for alcoholic beverages must also appear in the product's online advertisements.

Internet service providers may be held liable for advertising that is contrary to the provisions of law. Penalties include:

• fines of up to R100,000 (approximately $45,000);

• suspension of all advertising for the product for 30 days; and

• publication of rectification or clarification to compensate for the improper advertising.
  

Tobacco advertising is severely restricted. Since the enactment of Law 10,167 of December 27 2000, commercial advertising of tobacco may only appear on posters, placards and boardings of internal sales points. This law expressly prohibits tobacco advertising by any electronic medium, including the Internet.

Consumer Protection Code

The Consumer Protection and Defence Code stipulates general rules that must be observed in advertising that utilizes any medium, including the Internet.

According to the code:

• publicity must be conveyed in such a manner that the consumer easily and immediately identifies it as such;

• all misleading or abusive publicity is prohibited; and

• the burden of proof of the veracity and accuracy of publicity rests with the advertiser.

The Child and Adolescent Statute

The Child and Adolescent Statute (Law 8,069/90) states that publications targeted at minors may not contain advertisements for alcohol, tobacco, firearms or ammunition. Ethical and social values must be respected. Web sites that are aimed at minors may also be subject to this statute.

Election Publicity

The highest court of appeals on electoral law (the Tribunal Superior Eleitoral) has enacted instructions concerning the 2000 elections. The Internet is subject to the same electoral rules as other media. The aim of the court was to prevent use of the Internet as a propaganda tool.

Unsolicited Advertising

Bill 2,601/2000 is currently at the National Congress. It aims to protect citizens against unsolicited e-mail advertisments ('spamming') and to prohibit the disclosure of consumers' e-mail addresses for the purpose of sending electronic advertising mailshots. According to the bill, such material should specify the origin of the data used for its remittance. Failure to comply with this rule would entitle the affected party to receive indemnification of up to R500 (approximately $230) per unsolicited contact. This would be paid by the beneficiary of the message and the party that passed on the consumer's data without consent. The bill does not apply to information that is available to the general public.

Additionally, Bill 1,589/99 determines that sending an offer by means of electronic advertising or without the adressee's prior consent of addressee shall permit the latter to identify these messages as offers, without reading the terms or content.

National Advertising Self-Regulation Council

The regulation of advertising is conducted not only through the administrative and judicial channels but also through self-regulation, as promoted by the National Advertising Self-Regulation Council (CONAR), by means of application of the Brazilian Advertising Self-Regulation Code of May 5 1980.

This code lists the ethical standards applicable to commercial advertising. Enforcement of the code is undertaken by various entities within the advertising community, including the Brazilian Advertising Agency Association, the Brazilian Advertisers Association, the National Newspaper Association, the Brazilian Radio and Television Broadcasters Association and the National Association of Magazine Publishers and Outdoor Centres.

Since its enactment, various other associations representative of new advertising communications have adhered to the code, including pay-per-view television broadcasters and internet service providers. In 1999 the Interactive Media Association (which unites the principal access providers, content suppliers and site producers that operate in the domestic internet market) joined CONAR. According to CONAR Bulletin 123 of September 1999, membership will permit the Interactive Media Association to become actively involved in the efforts of entities that represent the traditional media, by enhancing ethical advertising standards in the media as a whole.

Although essentially conceived as a self-regulatory instrument, the code is also designed for use by courts and authorities as a reference guide and subsidiary source for advertising legislation and other laws, decrees, ordinances, rules and instructions concerning advertising.

The code refers to internet advertising. Using the example of alcohol advertisements, the code determines that:

• media planning must be prepared carefully in relation to the target audience. Such an advertisement should not be inserted in any publication, programme or web site that targets minors;

• since the Internet is accessible to all, irrespective of age, the advertising of alcohol should be planned with special care, meriting restrictive interpretation of all relevant rules; and

• such advertising should contain phrases such as "Avoid the excessive consumption of alcohol", in a visible and conspicuous manner, whether in publications, on web sites or on posters.

Violations of the code's rules are subject to penalties and recommendations that the relevant advertisement be amended or withdrawn.

It is exclusively incumbent upon CONAR's Ethics Council to examine violations of the code. CONAR's Superior Council has the responsibility of ensuring compliance with the decisions of the Ethics Council.

For further information on this topic please contact Ricardo Barretto or Kátia Madeira Kliauga at Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados by telephone (+55 11 3066 5999) or by fax (+55 11 3167 4735) or by e-mail ([email protected] or [email protected]).