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Advertising
Irish law does not distinguish between on-line advertising and off-line
advertising. On-line advertisements are subject to the same legal
provisions that govern all forms of advertising.
Relevant
legislation and protection includes that governing misleading advertising
and the protection of consumers, the application of industry voluntary
codes of practice, as well as certain sectoral regulatory rules
such as those governing advertising for financial products and services
or prescription medicines.
Under
the European Community (Misleading Advertising) Regulations, 1988,
the Director of Consumer Affairs may, following a complaint or on
his own initiative, request that any person engaged or proposing
to engage in misleading advertising, to discontinue or refrain from
such advertising. If the request is not met the Director or any
other person can apply to the High Court for an order prohibiting
the publication of the advertisement.
Care
should be taken not to infringe third party intellectual property
rights by the misuse of metatags or hypertext links. For more information,
see the section dealing with Intellectual Property Rights.
It
is an offence for anyone to apply any false or misleading trade
description to goods. Accordingly, particular care should be taken
with comparative advertising. Apart from the risks associated with
infringement of third party intellectual property rights, care should
also be taken not to expose your advertisement to allegations of
defamation or slander of goods.
Advertising
industry codes of practice are administered by the Advertising Standards
Authority for Ireland (ASAI). The code of advertising standards
operated by the ASAI controls the content of commercial advertisements
targeted at consumers. The code of sale promotion practice regulates
marketing techniques such as prize promotions and premium offers.
Special rules deal with advertising of alcoholic beverages, advertising
aimed at children, advertising dealing with health and beauty products
and services, advertising dealing with the provision of financial
services and products, employment business opportunities, and distance
selling.
On-line
advertising is of course globally accessible. Advertisers on Irish
websites must therefore be conscious of the fact that their advertisements
may breach the laws of other jurisdictions.
Unsolicited
email advertising (spam) is a hot topic. The EU Directive on Electronic
Commerce (2000/31/EC) sets out the conditions that must be complied
with in the use of what is defined as commercial communication i.e.,
any form of communication designed to directly or indirectly promote
the goods, services or image of the advertiser.
The provisions of the Electronic Commerce Directive dealing with
the regulation of unsolicited commercial communications were transposed
into Irish Law on the 26th February 2003 by the european Communities
(Directive 2001/30/EC) Regulations 2003.
These
conditions require that the communication must be clearly identified
as a commercial communication, the identity of the advertiser, and
if relating to promotional offers clearly and unambiguously identified
as such. Additionally, unsolicited email must be identified as such
to the recipient clearly and unambiguously and advertisers must
regularly consult opt-out registers to exclude those who have registered
their opt-out preference from the campaign.
On-line
traders should also have careful regard to the provisions of the
Brussels Regulation adopted by the EU Commission on 22nd December
2000 and which took effect throughout the EU in March 2002. Under
its provisions, consumer protection provisions will apply where
the consumer has contracted with an on-line business, pursuing commercial
activities in the consumers’ home state or, directs such activities
to the consumers’ home state.
Pending
EU legislation which will have implications for rules governing
advertising include the Distance Marketing and Consumer Financial
Services Directive. This proposed Directive has been the subject
of debate within the EU Commission since May of 1999. In early 2002
the EU Commission issued a Communication (“Commission Communication
on E-Commerce and Financial Services”). The EU Parliament is
now examining the proposal for this Directive.
For further information or general enquiries contact: -
Patrick Ryan
Email: pryan@kilroys.ie
Telephone: +3531-439 5600
Fax: +3531-439 5601/439 5602
© Kilroys Solicitors 2002 - 2003
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