Advertising

Regulation

What rules govern advertising on the internet?

Generally, advertising on the internet is subject to the same rules applicable to advertising provided by other means. The National Self-Regulatory Advertising Council (CONAR) regulates advertising. CONAR is a non-governmental organisation of advertising industry players and has the authority to adjudicate complaints regarding campaigns aired on all media. CONAR may order changes to the disputed campaign or its suspension. No indemnification can be obtained from CONAR, and instead should be claimed in court. Consumer protection rules also apply to any communication vehicles. Under such rules, advertising shall always enable consumers to readily identify it as such and its content binds the advertiser. Misleading and abusive advertisements are unlawful and represent a felony. Law No. 13,146/2015 sets forth that advertising placed by virtual means must provide, at the expense of the advertisers, accessibility to disabled persons by means of closed caption, a window with a Brazilian sign language interpreter or audio description. Recently, Bill No. 2,630/20, also known as the ‘Fake News Law’, was proposed to reduce dissemination of false or misleading news on social media (with more than 2 million registered users) and private messaging service providers, which also involves the prohibition to advertise such content on these platforms. The Bill was approved by the Senate and is pending approval from the House of Representatives and from the President.

Definition

How is online advertising defined? Could online editorial content be caught by the rules governing advertising?

There is no legal provision defining online advertising and it is subject to the same regulations applicable to traditional advertising. Advertising in general is defined as any message intended to promote the sale of a product or service or to promote the image of a company or trademark. All advertisements must be readily identifiable as such. Concealed advertisement is unlawful. This is especially important when it comes to advertisement through blogs or social media, for instance, which, if not clearly identified, may be confused with authentic opinions. Paid editorials in the form of articles, notes or news must also be clearly identified as sponsored content so as not to mislead consumers. If editorial content is not intended to promote the sale of a product or service or to promote the image of a company or trademark, it will not be subject to advertising regulation.

Misleading advertising

Are there rules against misleading online advertising?

An advertisement is unlawful if it discloses deceptive information or if it omits information that may mislead consumers regarding certain product characteristics. An advertisement is also unlawful if it induces violent, prejudicial or superstitious behaviour or fails to respect environmental values, or takes advantage of a child’s lack of judgement or makes the consumer behave in a manner that is prejudicial to his or her own safety and health. Pursuant to the Consumer Protection Code, the supplier of a product shall retain factual, technical and scientific data on which the advertising is based. A number of practices related to advertising are considered criminal infractions, such as failure to gather the data used as the basis for the advertising, omission of information regarding the harmful or hazardous nature of products, false or misleading statements or omission of certain relevant information, and others. CONAR also establishes ethical rules and principles for advertising of products, such as honesty, truthfulness, fair competition, advertiser’s social responsibility, human dignity, privacy and copyright. Recently, Bill No. 2,630/20, also known as the ‘Fake News Law’, was proposed to reduce dissemination of false or misleading news on social media (with more than 2 million registered users) and private messaging service providers, which also involves the prohibition to advertise such content on these platforms. The Bill was approved by the Senate and is pending approval from the House of Representatives and from the President.

Restrictions

Are there any products or services that may not be advertised on the internet?

Unlawful products or content cannot be advertised on any channels. The advertising of certain products is forbidden or limited on the internet (and sometimes by other means also): advertisement of tobacco by-products by any electronic means is forbidden and limitations apply to medicines, which can only be advertised on the internet if they are sold over the counter and if the advertisement fulfils certain criteria.

Hosting liability

What is the liability of content providers and parties that merely host the content, such as ISPs? Can any other parties be liable?

Under the Internet Act, the provider of a web page that hosts an advertisement will only be held responsible for the advertisement content if, after receiving a specific court order, it does not remove the content within its technical capabilities and within the prescribed deadline.

Recently, Bill No. 2,630/20, also known as the ‘Fake News Law’, was proposed to reduce dissemination of false or misleading news on social media (with more than 2 million registered users) and private messaging service providers. Under this Bill, ISPs might be held responsible for false or misleading content if it is not removed, suspended or banished, among other provisions, within a reasonable period, subject to official warnings, activities’ temporary suspension or even activities’ prohibition in Brazil. The Bill was approved by the Senate and is pending approval from the House of Representatives and from the President.

Law stated date

Correct on

Give the date on which the information above is accurate.

1 July 2020.