Advertising

Regulation

What rules govern advertising on the internet?

Advertising on the internet is not expressly regulated by Polish law. Therefore, the general rules concerning advertising apply (ie, provisions of the ACUC and the AEPS and regulations for the protection of incorporeal interests in intellectual property). In specific situations, the Press Law Act of 26 January 1984, the Gambling Act of 19 November 2009 and the Radio and Television Law Act of 29 December 1992 apply. In 2006 the Union of Associations Advertising Council was established, which is a self-regulatory body that oversees the practices of the advertising industry including entities that use the internet as a tool for advertising. The association adopted an Advertising Code of Ethics, which sets rules on advertising that protect the recipients as well as the beneficiaries of advertisements. The Advertising Ethics Commission is the body of the association that handles complaints from both consumers and competitors against entities that use advertising contrary to the Advertising Code of Ethics. Membership is voluntary.

Definition

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

Online advertising is not defined specifically in any legal act. The Radio and Television Law Act sets forth a definition of an advertisement as commercial information originating from a public or private entity in connection with its business or professional activity aimed at the promotion of sales or payable use of products or services as well as auto-promotion. Rules on banned advertising (see question 22) apply to online editorial content when such content may be recognised as advertising.

Misleading advertising

Are there rules against misleading online advertising?

Under the AEPS, misleading advertising that may affect a client’s decision to purchase a product or a service constitutes an act of unfair competition. When assessing whether an advertisement is misleading, all of its elements should be taken into consideration, in particular the quality and quantity of the elements of the goods or service advertised, the manner of performance, usability, purpose and possibility of use, repair and conservation as well as the client’s behaviour. There are no specific rules on the evidence that has to be kept by advertisers. The burden of proving that the information in an advertisement (or on the product) is true when it comes to civil claims under the ACUC lies with the advertiser, which is an exception to the general rule in civil law that the burden of proving a fact lies with the person that draws legal effects from that fact. In other claims connected to advertising, general rules of the CPC and the Criminal Codes apply.

Restrictions

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

Banned advertising, including advertising on the internet, includes: advertising contrary to the law, misleading advertising, unjust comparative advertising, hidden advertising, advertising that invades privacy, spam and advertising of tobacco, alcohol (except for beer), psychotropic and abusive substances, games of chance and medicinal products that do not meet specific requirements.

Certain limitations apply to the advertising of medical services, services rendered by attorneys-at-law, notaries, as well as legal and tax advisers.

Total bans apply to content of a criminal nature, including child pornography, pornography with animals and content provoking crime, racial or ethnic hatred.

The provisions of the AEPS prohibit sending commercial information to natural persons that was not requested by them or that is sent to them without their consent. This restriction no longer relates to legal persons, which means that a company may receive unsolicited commercial information if it is not spam.

Nevertheless, the new provision of article 172 of the TLA introduced as of 25 December 2014 states that it is prohibited to use any telecommunication user’s device (computer, smartphone, tablet, etc) or automatic system for the purposes of direct marketing (mailing) unless a user consents thereto. This provision protects consumers as well as business entities from receiving unsolicited marketing information. Failure to comply with the new rule may amount to a financial penalty imposed by the president of the ECO, up to the amount of 3 per cent of the income of the fined entity in the previous calendar year.

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?

See question 25 as to general rules of liability of content providers, entities providing hosting services and ISPs.