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Advertising and marketing
What rules govern digital advertising and marketing in your jurisdiction?
All advertising activities (digital or otherwise) are subject to certain principles in the interest of the market as a whole. Comparative advertising is subject to strict conditions and misleading advertising or advertising damaging the reputation of others is prohibited (under Articles VI.17, VI.98 and VI.105 of the Code of Economic Law).
Chapter 4 of Book XII of the Code of Economic Law provides additional obligations regarding digital advertising. These obligations include:
- the requirement that the party for whom the advertising takes place is identifiable;
- the requirement that advertising should be clearly recognisable as such taking into account the global impression; and
- the prohibition of using electronic mail for advertising purposes without the prior, free, specific and informed consent of the addressee of the messages.
Are there any specific regulations governing the use of targeted advertising?
Targeted advertising is indirectly regulated through the regulations on cookies, which are used for targeted advertising.
Belgium has implemented the EU Privacy and Communications Directive (2002/58/EC) of 12 July 2002 as amended by EU Directive 2009/136/EC of 19 December 2009. The relevant rules on cookies are laid out in the Electronic Communications Act of 13 June 2005. These rules must be combined with the principles on the processing of personal data as laid out in the EU General Data Protection Regulation as cookies may qualify as personal data.
In principle, internet users’ prior consent is required for cookies to be placed on their devices and for the later consultation of such cookies. However, such consent is not required for cookies that are necessary for the functioning of a website. The consent rule primarily targets privacy-intrusive cookies (eg, cookies used for tracking, profiling and monitoring for the purpose of marketing).
The rules on cookies are likely to undergo significant changes as a result of the adoption of the upcoming ePrivacy Regulation, which is aimed at further simplifying and harmonising the rules on cookies throughout the European Union.
Are there any restrictions or limitations on goods and services that can be advertised, marketed and sold online?
Yes, some restrictions apply with respect to goods and services that can be sold online. Pursuant to Article XII.16 of the Code of Economic Law, the following types of transaction cannot be concluded online:
- contracts that create or transfer rights in real estate, with the exception of lease agreements;
- contracts in respect of which the law requires the intervention of a court, an authority or a professional group exercising a public task (eg, a notary public);
- contracts in respect of personal or real estate securities or guarantees which are made by persons acting for purposes outside their trade or professional activities; and
- contracts regarding family and inheritance law.
In addition, certain royal decrees restrict the marketing and sale of certain types of products or services.
What rules and restrictions govern the sending of spam messages?
Article XII.13 of the Code on Economic Law provides that the use of electronic mail for advertising is prohibited without the prior, free, specific and informed consent of the addressee of the messages.
Email advertising must provide clear and understandable information about the right to oppose the receiving of advertising in the future and should designate an appropriate means to exercise this right electronically and make this resource available.
There is no need to obtain prior consent to send email marketing to:
- impersonal email addresses of legal entities (eg, email@example.com); and
- existing customers for identical or similar products or services, subject to a number of additional conditions being complied with.
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