On January 26, 2016, Serbian Parliament adopted the new Advertising Law („Official Gazette of RS“, No. 6/2016) superseding the one that was in force since 2005 („Official Gazette of RS“, No. 79/2005). According to the statements made by the representatives of the Serbian Ministry of Trade, Tourism and Telecommunications, the new Law aims to achieve harmonization with the relevant European documents, as well as to establish a legal framework that would be up to technological challenges.
The new Advertising Law is applicable to all forms of commercial advertising, irrespective of medium used. It covers print, outdoor and online advertising and incorporate the rules regulating audiovisual commercial communications that were harmonized with the EU Audiovisual Media Services Directive in the 2014 Law on Electronic Media („Official Gazette of RS“, No. 83/2014). The Law shall enter into force on February 6, 2016, but will be effective as of May 6, 2016.
Below are some of the noteworthy changes:
Definitions and scope
For the purposes of the Law, ‘advertising’ is defined as the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations. The definition is taken verbatim from the Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. However, it is provided that the same set of rules applies to:
- personal advertisements and other ads posted by individuals and not in connection with their trade or business,
- public service announcements made by public authorities, state owned and publicly funded entities,
- political advertising,
- promotional activities of associations, trade unions and other entities not intended to promote the supply of goods or services, and
- dissemination of information related to activities of socially responsible behaviour in cases that are not considered sponsorship.
Self-regulation and Co-regulation
For the first time in history of Serbian advertising legislation, the Law recognizes the importance of self-regulatory and co-regulatory mechanisms. Industry self-regulation is encouraged, as long as it is within the rules that are set in the Law. As for co-regulation, it is provided that media services providers should develop, subject to the broadcasting regulator’s consent, codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended.
Misleading, Surreptitious and Comparative Advertising
Misleading advertising, i.e. advertising which in any way deceives or is likely to deceive the person to whom it is addressed and which, by reason of its deceptive nature, is likely to affect their economic behaviour and/or injure the competition is prohibited.
Comparative advertising, which was prohibited according to the old law, is now allowed; under the conditions equal to those provided in the Article 4 of the Directive 2006/114/EC, i.e. if, as far as the comparison is concerned:
- it is not misleading;
- it compares goods or services meeting the same needs or intended for the same purpose;
- it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
- it does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;
- for products with designation of origin, it relates in each case to products with the same designation;
- it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
- it does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name;
- it does not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trademarks, trade names, other distinguishing marks, goods or services and those of a competitor.
In addition, Law introduces new remedies to those affected by the misleading or unlawful comparative advertising.
Surreptitious advertising, understood as the representation of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services that is intended to serve as advertising and might mislead the public as to its nature, is prohibited. Any such representation shall, in particular, be considered as intentional if it is done in return for payment or for similar consideration. However, advertising shall not be deemed surreptitious if the recipient is duly informed, by optical or acoustic means, that particular representation serves as advertising.
Protection of Minors
The new Advertising Law applies a system of graduated regulation to the protection of minors. The advertising rules surrounding children (up to 12 years of age) and young people (12-18 years) are deliberately stricter, aiming to protect minors against harmful or inappropriate advertising and abuse of their credulity.
Audiovisual Media Services
As already mentioned, the rules regulating audiovisual commercial communications that were harmonized with the EU Audiovisual Media Services Directive in the 2014 Law on Electronic Media, covering broadly, broadly, television advertising, sponsorship, teleshopping and product placement, are now incorporated into the new Law.
However, there are some changes and the most important one prohibits insertions of local television advertising catering to Serbian audiences over the original advertising blocks in television channels licensed abroad and retransmitted in Serbia pursuant to the Council of Europe’s Convention on Transfrontier Television, ratified by Serbia in 2009 („Official Gazette of RS“, International Agreements, No. 42/2009).
Provisions dealing with outdoor advertising are mostly the same as they were in the 2005 Advertising Law. Additionally, the new Law specifically authorizes local authorities to regulate and assess amenity and public safety considerations for the outdoor advertising.
Online advertising rules contained in the new Law are applicable on advertisements targeting audience in Serbia and under the condition that advertised goods or services may be bought, i.e. delivered in the territory of the Republic of Serbia. Since Serbia has harmonized its electronic commerce legislation with the EU’s Electronic Commerce Directive 2000, mere conduit principle for information society service providers apply. Notice and take down system is implemented in a way that information society service providers are obliged to take down non-compliant advertisements upon the ruling of the authorized authority.
Tobacco and Alcoholic Beverages
Advertising cigarettes and other tobacco products is prohibited. Same applies to electronic cigarettes as well. As for alcoholic beverages, the regime is actually liberalized, when compared to the 2005 Advertising Law. Advertising for alcoholic beverages is allowed:
- in print media, as long as the publication in case is not aimed at minors;
- in broadcast media, for beverages containing less than 20% alcohol by volume only after 6.00pm and before 6.00am, and for beverages containing more than 20% alcohol by volume only after 11.00pm and before 6.00am;
- online, for beverages containing less than 20% alcohol by volume only;
- outdoor, if not in the vicinity of kindergarten, school, health institution, or any other institution intended to minors, for beverages containing less than 20% alcohol by volume only;
- at sport events and in connection with the sports, for beverages containing less than 20% alcohol by volume only.
However, advertising for alcoholic beverages, even when it is allowed, must follow the rules designed to ensure that the content of such advertising is consistent with the need for demonstrating responsibility and moderation in consumption, and that it does not encourage consumption by minors. Finally, each advertisement needs to contain a warning message as a reminder that selling and serving alcoholic beverages to minors is prohibited, as well as responsible consumption reminder.
Nutrition and health claims
Nutrition and health claims must be based on relevant scientific justification or authorized and confirmed by existing regulations.
All advertisements for gambling services or products, besides the number of restrictions, designed to encourage responsibility and protect minors, must contain a message as a reminder of gambling age restrictions. Finally, only duly licensed gambling operators are allowed to advertise.
Unsolicited advertisements addressing directly individuals, identified by name or otherwise, are conditioned by obtained consent (opt in) that may be revoked at any time (opt out).
Sponsorship, as any financial or other contribution made by sponsor to a natural person or an undertaking, with a view to promoting sponsors name, trade mark, image, activities or products, has to be clearly identified as such. News and current affairs programmes may not be sponsored. Sponsorships by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products, electronic cigarettes, alcohol beverages, or whose activities include the manufacture or sale of medicinal products and medical treatments, as well as gambling operators, are prohibited or restricted.
Those responsible to monitor the implementation of the new Law, include the Ministry of Trade, Tourism and Telecommunications, Regulatory Authority for Electronic Media and local authorities. Officials responsible for investigating violations of the Law, will be entitled to temporary prohibit publication of certain advertising message and institute proceedings at the Minor Offences Court. Minor Offences Court may impose fines to undertakings starting from 300,000.00 RSD up to 2,000,000.00 RSD and to responsible managers, entrepreneurs and public officials starting from 50,000.00 RSD up to 150,000.00 RSD. Even more, the Minor Offences Court may beside the fine, prohibit undertaking or an entrepreneur to conduct certain business activities for up to one year, or bar a manager from holding managerial position for up to one year, as well.
As there may be additional areas requiring further explanation or clarification, it is recommended that businesses conduct thorough compliance reviews of their advertising activities in Serbia.
If your business is affected by the changes of the advertisement rules, or you have any questions regarding the above, please contact Živković Samardžić Technology, Media and Telecommunications associate Miloš Stojković (firstname.lastname@example.org), who was the member of expert group set up by the Ministry of Trade, Tourism and Telecommunications, to provide advice and expertise in relation to the preparation of new Advertising Law, or any of your regular contacts at Živković Samardžić.